Director of Public Prosecutions v Salih

[2012] VCC 2193

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-11-01961

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUSTAFA SALIH

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 & 22 November 2012
DATE OF SENTENCE:	28 November 2012
CASE MAY BE CITED AS:	DPP v Salih
MEDIUM NEUTRAL CITATION:	[2012] VCC 2193

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW

Catchwords:  Dangerous driving causing death

Legislation Cited:   Crimes Act 1958, Sentencing Act 1991

Sentence:Eighteen months’ imprisonment, wholly suspended for an operational period of two years

Section 6AAA declaration: two years’ imprisonment with non-parole period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Hannan	Office of Public Prosecutions
For the Offender	Mr D. Langton	Revill & Papa Lawyers

HIS HONOUR: 

1Mustafa Salih, you have pleaded guilty to one charge of driving a motor vehicle at a speed or in a manner that was dangerous to the public which caused the death of Mehmed Bajric.  At the time of the offence this charge carried a maximum penalty of five years' imprisonment.  Approximately one fortnight after this offence by you, the Parliament increased the maximum penalty for this offence to ten years' imprisonment.  I have to be careful to sentence you as the situation stood at the time of your offence.

2At the time of the offence you had one prior traffic offence for excessive speed.  On 4 October 2007, some five months before this offence, you were convicted and fined for excessive speed and your licence was suspended for one month.  This was done by the traffic infringement notice procedure.  You have subsequently been convicted on three separate occasions for excessive speed.  On two of those occasions where the offending was on successive days, you were convicted and your licence suspended for 12 months.

3These three subsequent speeding offences occurred between the time of the accident in this case and the time you were charged for this offence.  You have also been convicted of driving whilst suspended on two separate occasions in that same period.  This subsequent offending is not a good indicator for your rehabilitation.  You no longer own or possess the dark blue VN Commodore in which you offended.  I take this to be a step in the right direction for your rehabilitation.  You do not have any other criminal history involving violence or dishonesty.  The character evidence contained in the references handed up in Exhibit 1 on the plea set out that you are a good person who thinks of others.

4I will now turn to the circumstances of the offence.  On 6 March 2008 you were travelling south on Kings Road which becomes Station Road in Cairnlea.  It was about 9 pm.  Your car, a dark blue VN Commodore that had been hotted up, travelled to the lights at the intersection of Main Road West. You were in the middle lane at that intersection.  Two other cars driven by people you did not know got a rolling start on you when the lights changed to green.  You accelerated and your co-accused, Grech, accelerated away from the intersection.  Neither you nor Grech were going to allow the other car to get in front.

5This part of the road is an 80 kilometre zone.  Other drivers on the road at the time described each car as going "dog after cat".  The speeds were greater than 100 kilometres per hour.  The distance from Main Road West intersection to the mosque at Cairnlea is approximately 800 metres.  You and Grech raced along this part of the road until Grech collided with Mr Mehmed Bajric as he crossed the road from the mosque.  Mr Bajric was crossing the road from your right to left.  You were in the right-hand lane and managed to miss Mr Bajric;  Mr Grech did not.  Mr Bajric was killed as a result of the impact with Grech's vehicle.  You continued along the road on your way home. 

6In response to the news reporting on Mr Bajric's death, you turned yourself into police the next day.  In that record of interview on that day you denied you were dragging with Grech.  You admitted your car did not have a speedo and you were not sure about what speed you were travelling.  You said that after you passed the man, meaning Mr Bajric, you would have looked in your rear view mirror and saw nothing.  You then went home.

7In this case you have pleaded guilty to the offence on the basis of accessorial liability in that you aided and abetted Grech in the commission of the offence, resulting in the death of Mr Bajric.  In a sense, it was only a matter of chance whether you or Grech actually impacted Mr Bajric, given the manner in which each of you was driving on that part of that road at that time.  The case against you is that you intentionally aided or encouraged Grech to drive in a dangerous manner by your attempts to get in front of Grech.

8I now turn to the impact on the victims.  Mr Salih, an offence such as this has an impact on a wide range of victims.  The deceased, Mr Mehmed Bajric, was a 78-year old man on his way home from prayers at his mosque when he was struck down and killed.  He was a man who had worked hard and honestly for his whole life.  He and his wife were forced to leave his native Bosnia in the Balkans War.  They escaped to Slovenia as refugees.  In the end he decided to move to Australia, but before they left his wife died and was buried in Slovenia.  He had plans to return to see his friends and family from his old country, but this tragedy took that opportunity from him.

9In a victim impact statement read in court from his daughter Elvira Sacirovic, Mr Bajric was described as a very brave, humble and generous man who remembered everyone's birthday and put a smile on their faces at all times.  His generosity and humour extended to the grandchildren, who were given lollies, special snacks, and his own special brew of a lemon drink.  The laughter he created in the grandchildren is now gone.  Mrs Sacirovic set out how she missed the chess games and the searches for glasses for Mr Bajric.  The sadness and loss is as sharp today as the day of his death.

10Mr Benjamin Bajric, his son, also filed a victim impact statement.  In his statement he set out the history of his father and he was a hardworking, loving and generous family man.  It was clear from this statement that Mr Bajric was an outstanding father and grandfather within his family.  The deceased loved his new country Australia and that he had settled here.  He was highly respected here and in Slovenia.  His son described that his sadness at the tragic loss of his father was immeasurable.

11Mr Benjamin Bajric states that his wife said that the punishment should be such that you would be reminded every day of this tragic event.  Mr Bajric Junior on the other hand said the punishment should take into account something like this could happen to anybody.  That shows a great amount of understanding by his son.  He said it was most important that the persons responsible for his father's death feel remorse.  He went on to say your conscience is going to be your biggest punishment.  There is no doubt the family of the deceased have suffered great sadness, grief, and loss as a result of your offending.

12I now turn to your personal circumstances.  Mr Salih, you were born on 30 July 1984 and are now 28 years old.  At the time of the offence you were 23.  Your parents are of Turkish-Cypriot background and came to Australia as migrants, as indeed so did Mr Bajric.  You are the eldest child of their four children.  All four children, including yourself, live with your parents in Deer Park.  All of the children, including you, are born in Australia.

13You completed Year 12 at Deer Park Secondary College in 2002.  Following your secondary education you completed a pre-apprenticeship course for an electrician at Sunshine TAFE.  Unfortunately the successful completion of that course did not lead into a job as an apprentice electrician, and that career ambition faded out.  You have since that time had, what your counsel Mr Langton described as, a patchy work record.  You have worked in a number of labouring-type jobs on a casual basis over the years since your school days.  This year in 2012 you have studied and completed a Certificate III in transport and logistics at the Ashley Institute of Training.  This course has led you to obtaining employment at the Brooklyn Cold Storage.  You are currently serving a trial period at that job with the opportunity for a permanent position being granted to you.  This is a positive step taken by you when your immediate future was uncertain due to this case.

14Miss Patrice Parletta in a reference dated 19 November 2012 sets out that you had a troubled childhood. It seems that the troubled childhood arises from being the eldest child of a migrant family.  Your parents have worked hard to provide for you and your siblings to get established here in Australia.  You had to do some of the parenting of your younger siblings.  You continue to act as an interpreter for your mother, who has not yet learned to speak English.  I note that you assist Ms Parletta's family in a garden due to her father's inability to physically manage those tasks due to his disabilities.  This shows that you are prepared to assist other people in need, a positive sign for your future. In summary, you are a single man living with your parents and employed as a forklift driver in the logistics industry. 

15Your plea of guilty.  Mr Salih, you have pleaded guilty to the one charge on Indictment No.B10252293.2 which was a charge of dangerous driving causing death.  The plea of guilty was on the first day of the trial; however, that is not the full story or history of this case getting to trial.  At the committal and before any witnesses were called to give evidence you indicated your willingness to plead guilty to the charge of dangerous driving causing death on an accessorial liability basis referred to earlier.  This is to be regarded as a plea at the earliest time and a proper indication of your remorse. 

16At the plea hearing before Judge Smallwood in February 2012 you changed your plea to not guilty.  Mr Grech continued with his plea of guilty and was sentenced.  The prosecution decided that a third driver, Abdo, should be charged with the same offences as yourself after the plea date in February 2012.  Mr Abdo had a committal hearing and charges against him were filed in this court.  Your case was to be heard with his at the same trial.  After negotiations between Mr Abdo's legal representatives and the prosecution, a notice of discontinuance was filed in respect of Mr Abdo's charges.  That left your trial remaining for 19 November 2012.  You have pleaded to the charge of dangerous driving causing death which you indicated at the very beginning of this process. 

17Your plea of guilty has a utilitarian value in that it gives certainty of outcome to the charge you faced; it allows the court and police resources to be expended on other matters; your plea is a clear recognition by you that you accept your responsibility for the offending as you have on 6 March 2008.  Your plea also saves the victim's family the agony of the conduct of the trial, and as I said, gives a certainty of outcome which will hopefully allow the emotional healing to begin for the family.  All of this process shows that you have through a maturation process and your plea of guilty taken full responsibility for your part in this tragic death of an innocent man.

18I will now turn to sentencing considerations.  The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offence, your culpability for it, your personal circumstances and those of the victim's family.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you, an offender, are rehabilitated and reintegrated into society.

19The charge of dangerous driving causing death has general and specific deterrence as high priorities in sentencing considerations.  However, each case is different and in this case the consideration of just punishment is greatly impacted on by considerations of delay and the principles of parity of sentencing.  In respect of delay, sentencing you for a crime that was committed a long time ago, in this case some four years and eight months falls for a considerable measure of understanding and flexibility of approach.  In a case where the delay is lengthy, the considerations of fairness to the offender can play a dominant role in determining the appropriate sentence.  This may lead to what may be considered an undue degree of leniency being extended to the offender.

20In this case it could be said the delay between February 2012 and now is attributable to your change of plea on that day before Judge Smallwood.  The reason for the delay between the day of the offence and February 2012, a period of some four years, is no way attributable to you and consequently delay is a factor weighing heavily in your favour in this case.  In fact, you were not charged with any offences arising from this offending until three years after the event.

21The delay from the time of your record of interview with police and now has left you with a great uncertainty in your life.  The uncertainty and apprehension that goes with it have been a form of punishment for you.  In a usual case, the fact of delay is taken into account where there has been a considerable change in your personal circumstances.  In your case you have continued to live at home with your parents and siblings. 

22You have in 2012 undertaken a course at Ashley Institute in Transport and Logistics.  You have completed Certificate III in that course.  As a result of that course you have obtained employment as a forklift driver at Brooklyn Cold Storage.  According to the references from your employer, you have an opportunity to make that casual employment a permanent position.  In summary, you are on a rehabilitative course in the sense that you have  full‑time employment and a stable place of residence. 

23The period of delay has also seen you offend in respect of three occasions of excessive speed between the times of the record of interview for this offence and the time of being charged for this offence, that is, January 2011.  It was submitted on your behalf that you have fully understood your position since the charges in this case were laid against you.  You have not been charged with any offence since that time.

24The time of delay has seen you offend by excessive speed resulting in a 12‑month suspension of your driver's licence.  It has also given you time to comprehend your position and allow you to retrain and become employed.  In effect, you have commenced rehabilitation.  The prosecution concede that the factor of delay, either to February 2012 or to now, are not really your responsibility.  The prosecution properly acknowledges that you are entitled to leniency in sentencing because of the delay.

25I now turn to parity.  In this case, your co‑offender, Raymond Grech, was sentenced by Judge Smallwood in this court on 3 February 2012.  Mr Grech was the driver of the car that struck and killed Mr Bajric.  The prosecution handed a copy of the reasons for sentence to me for consideration in this case. 

26In this case, the parity principle has application.  The parity principle is based on the notion of equal justice and the need for the consistency of sentencing.  You are a true co‑offender in this case as the prosecution case against you is that you aided and abetted the offending by Raymond Grech. 

27In February 2012, your co‑accused, Grech, was sentenced to 18 months' imprisonment.  The whole of the sentence was suspended for an operational period of two years.  Mr Grech's licence was cancelled and he was disqualified from obtaining a licence for a period of 18 months.  Both yourself and Grech were young men at the time of the offence; 23 in your case, 22 in his. 

28Mr Grech was suspended from driving at the time of the offence.  You had your licence suspended for speeding a couple of months before the offence.  At the time of the offence you had common features of age and driving histories in respect of speeding. 

29Mr Grech was charged and pleaded on the basis that he was the driver of the vehicle that struck and killed the deceased, Mr Bajric.  You have pleaded guilty to the offence of dangerous driving causing death on the basis of accessorial liability in that you intentionally aided and encouraged Grech to drive at such a speed in a dangerous manner by trying to get in front of him. 

30Whilst Grech has actually killed Mr Bajric, you are equally culpable for the offence in that it was only a matter of chance whether Grech or your vehicle would have struck and killed the deceased because of the manner in which each of you were driving on that fateful night.  Mr Grech showed remorse for his actions on the night of the offence.  He pleaded guilty for his offence at the earliest time and maintained that plea until sentenced by Judge Smallwood.  In your case, you were not directly involved in a collision and the prosecution have not proceeded with the charge of failing to stop and render assistance. 

31You presented at the police station the next day and partook in a record of interview.  In the record of interview, you admitted to being in the vicinity of the tragic accident, but you denied you were dragging.  You did admit to police that you were speeding.  Your attendance at the police station has averted the necessity for an exhaustive and extensive investigation to find you.  It is an indicator of your inherent acceptance of your role in the tragic and untimely death of Mr Bajric. 

32Initially you indicated that you would plead guilty to the charge of dangerous driving causing death.  This indication of a plea was at the earliest stage.  In February, as I have said before, you changed your plea to not guilty.  Subsequently, the Director of Public Prosecutions charged Mr Abdo with the same charge as yourself.  As I have said, the committal process continued on until the finalisation of your case.

33Ultimately, the charge has come here before the court and you have pleaded to it.  In the whole conduct of the case, there has not been one witness to these unfortunate events that has been cross‑examined on your behalf.  In summary, you have pleaded guilty to the charge and assisted the police with their investigation.  I accept that there are matters that indicate that you have genuine remorse for your actions on 6 March 2008. 

34Mr Grech was given a discount in sentence because he gave an undertaking to give evidence against you and perhaps Abdo, who was yet to be charged with the same offences.  You were not given the opportunity to give evidence and this discount does not apply to sentencing you in this case. 

35Mr Grech and you have offended subsequent to the offences in this case.  The prosecution conceded that there was little difference in respect of either Grech or yourself in this regard.  The main issue here is that you have been slow to alter your ways of driving, that is, rehabilitating your driving behaviour.  It was only after you had been charged with the offences giving rise to this trial that you have ceased offending.  You have commenced your rehabilitation.

36I accept that the parity of sentencing is appropriate in this case.  Whilst your position and that of Grech are not exactly the same as I have just discussed in detail, I have decided the counterbalancing factors between the two of you weigh equally and that the same sentence is appropriate for both of you.

37For the reasons I have set out, I sentence you as follows.  On the charge of dangerous driving causing death, you are convicted and sentenced to 18 months' imprisonment.  I direct that the whole of that sentence be suspended for an operational period of two years.  I order that your licence to drive a motor vehicle is cancelled and that you are disqualified from obtaining a licence for 18 months. 

38Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty, I would have sentenced you to a period of two years' imprisonment with a non‑parole period of 18 months. 

39Mr Salih, that concludes the formal part of this sentence.  I want to say two things; when you leave this court, you know and everyone knows that your actions on this night killed an innocent man.  You will have to live with that.  The second thing is, the charge of drive whilst disqualified or driving whilst suspended or any other charge that carries a term of imprisonment brings you back here if you offend in the next two years and have no doubt the 18 months that is held in suspension will be activated unless there is some incredibly good reason.  Do we understand one another?

40OFFENDER:  Yes, I understand.

41HIS HONOUR:  Thank you.  Anything else?

42COUNSEL:  No, Your Honour.

43HIS HONOUR:  Thank you.  Gentlemen, thanks for your help in this case.  These cases are very, very difficult to say the least and you have both handled it very well.  Thank you.

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