Director of Public Prosecutions v Sandhu

[2020] VCC 58

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02316

DIRECTOR OF PUBLIC PROSECUTIONS

v

DILRAJ SANDHU

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	Plea- 22 January 2020, 7 February 2020
DATE OF SENTENCE:	7 February 2020
CASE MAY BE CITED AS:	DPP v Sandhu
MEDIUM NEUTRAL CITATION:	[2020] VCC 58

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated carjacking (1 charge)- escape legal custody (1 charge) – possession of a drug of dependence (1 charge)
Legislation Cited: Crimes Act 1958, s 79(A), s479C, s - Drugs, Poisons and Controlled Substances Act 1981, s 73
Cases Cited: Harringtonv The Queen [2017] VSCA 307, DPP v Hudgson [2016] VSCA 254, DPP v Dador [2019] VCC 649, Azzopardi v R [2011] VSCA 372, The Queen v Di Simoni [1981] 147 CLR 383, Abdulfatah v The Queen [2019] VSCA 262, Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] 91 ALJR, DPP v Backer [2018] VCC 592.
Sentence:  Convicted and sentenced to an aggregate term of imprisonment of 3 years, to serve 2 years before being eligible for parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Toong
For the Accused	Mr N. Brown

HIS HONOUR: 

1Mr Sandhu is now 22.  He was 20 at the time of this offence, having been born on 2 December 1997.  In the plea in this matter and today, Mr Brown has appeared for Mr Sandhu.  In the two days in which we conducted the plea,
Ms Farrell appeared on behalf of the Director and Ms Toong appears today. 

2Mr Sandhu pleaded guilty to the three charges in indictment No.J11163266. The first of those, and most serious, of course, is the charge of aggravated carjacking. That is an offence under s.79(A) of the Crimes Act, and took place on 3 May 2018.

3The seriousness of this offence is detailed in the provisions of the Crimes Act and the Sentencing Act - firstly, it is a Category 1 offence, and pursuant to s.5(2)(a) of the Sentencing Act, a custodial sentence must be imposed. Indeed, pursuant to s.79(A)(2), that custodial offence brings with it a maximum of 25 years. That in itself is a prime indication under the provisions of the Sentencing Act, of the seriousness of this crime, there being no more serious offence in our legislation in the sense of maximum penalty, but for life sentences, which can apply to murder and certain drug offences.

4Further, in addition to those matters, if they are not indicative enough of the seriousness of this crime, s.10(AD) of the Sentencing Act applies, which provides that gaol must be imposed, and indeed, in regard to that gaol a non-parole period of three years, unless the Court finds under s.10(A) that a special reason exists for the non-imposition of such non-parole period.

5In consideration of such special reason, it is noted that there was no such submission put originally by Mr Brown in his written defence submissions, dated 14 January 2020, Exhibit 1.  However, during the hearing,
Mr Brown did make such a submission - that is, both in the hearing on 22 January and 7 February, that the Court should, pursuant to s.10(A)(2)(e), not impose the prescribed non-parole period.

6In making such a determination, s.10A(3)(ae) applies as to Parliament's intent in this regard, and that has been specifically written into the legislation, and must be taken into account by this Court, as does s.10A(3)(b), which provides the background to Mr Brown’s special reason submission, whereby this Court must consider whether the cumulative impact of the circumstances of the case would justify a departure from Parliament's expectations and intent by way of the decreed minimum non-parole period.

7It is to be noted that the current s.10 (A)(2)(e), that is, as amended in September 2018, does not apply to the circumstances of this case.

8In support of such submission, Mr Brown supplied the Court with two cases, being a determination of the Court of Appeal in DPP v Hudgson [2016] VSCA 254, and DPP v Dador [2019] VCC 649, a determination of a Judge of this Court. Further, in his written submissions, Mr Brown referred the Court to two sentences of this Court: DPP v Ibrahim [2018] VCC 1142, and DPP v Backer [2018] VCC 592.

9Insofar as the indictment is concerned, as I said, it included three charges.  
The other two to which Mr Sandhu has pleaded guilty are the second, being a charge of escape legal custody, which is a breach of 479(C) of the Crimes Act, for which a maximum penalty of five years applies.

10The third charge was possession of drugs of dependence - in this case, heroin and methamphetamine - being an offence under s.73 of the
Drugs, Poisons and Controlled Substances Act.  It is accepted by all parties that the purpose here was his own personal possession, not trafficking, and therefore, the maximum penalty applicable is one year.

11The Court was also asked to take into account, pursuant to s.145 of the Criminal Procedure Act, Summary Charge 7, under s.127 of the Road Safety Act of driving without a license, for which the maximum penalty is
60 penalty units and/or six months' gaol, and Charge 13, which was a breach of the Bail Act, which occurred on 23 April 2018, which was a charge of fail to appear in regard to bail which was given to him on 25 January 2018, for which the maximum penalty is two years.

12Exhibit A was the prosecutor's opening and summary, which is dated 14/01/20.  This opening was accepted by Mr Brown as detailing the facts upon which I am to sentence his client.

13As to the circumstances of the aggravated carjacking - that is, Charge 1 -
it is difficult to fully appreciate them.  In order to try to do that, Exhibit F was played, which was the dashcam footage of a Mr Diacuno.  Such was helpful, but did not in fact record the carjacking itself, except that it showed, subsequent to the carjacking, a distressed victim on the footpath.

14However, given the agreed facts, the victim impact statement of Mrs Lipec, which is Exhibit C, the doctor's report of Dr Sheriff, Exhibit B - the totality of such provides the Court with an appreciation of how this carjacking occurred and its consequences.

15There is no background to this offence that has been put to me by Mr Brown, except to say that it was situational and opportunistic, which I clearly accept.

16Exhibit G, however, which has been tendered today, the police summaries of offences committed at or about this time, but all before this offence, so that Mr Sandhu comes before the Court with no prior offences whatsoever.  But when one reads the totality of the crimes that he was subsequently convicted of, one understands from those materials that essentially, we are talking about a period of street offending of a person, who is described variously by the police officers who undertook the investigations, as an itinerant drug-affected person who was in receipt of no income.

17It is clear that given his status, he was illegally in Australia having had his visa cancelled, he was not getting any allowance whatsoever.  Hence, he was living by whatever means he could, on the street.

18That is the background to the particular circumstances of this case.  I accept from what Mr Brown has put, that this crime is coincidental.  The prisoner apparently appeared on the scene, after Mrs Lipec's daughter, by way of happenstance, stopped outside the Chemist Warehouse. That is, nothing about this crime could have been planned.  One could not plan such occasion, nor when it was going to occur, or how one was going to act, because the whole circumstance was happenstance.  It was in the momentary process of Mrs Lipec's daughter leaving the car, and Mrs Lipec moving to get into the driver's seat, that the prisoner took the opportunity to steal the car.

19The element that makes up the crime of carjacking was of course the use of force.  Here, the force was direct in that Mr Sandhu pushed Mrs Lipec out of the way in order to be able to get into the driver's seat.  The force was also indirect in that thereafter, Mrs Lipec sought to hold on to the steering wheel, but because of the force of the acceleration, when the prisoner took off in the car, she was forced to let go.

20We then proceed to the next element of the crime, being its classification as aggravated carjacking.  That, of course, comes about from the provision of s.79A(1)(b) - that in the circumstances, Mr Sandhu caused injury to a person; here being Ms Lipec - the causal connection here being that as she let go, owing to the acceleration, she fell to the ground and was grazed and bruised.  In this regard, I had the ability to see the photographs, Exhibit E, which demonstrate that grazing and bruising, and further, I have been able to peruse the medical report, Exhibit B.

21As I stress, there is no explanation for this crime put to the Court, as opportunistic as it was.  It is understood that Mr Sandhu was at the time heavily addicted to heroin and methamphetamine, and significantly, exactly those drugs were found on him.  Support for such comes from the statements made from the various police officers in the investigation documents that have been tendered today (Exhibit C).

22Thereafter, he apparently used the car simply for his own purposes - in this instance, going to the Brimbank shopping centre, where the second offence occurred, after he was arrested. 

23I asked the prosecutor to get further instructions from a senior prosecutor. The learned prosecutor submitted that to not impose the decreed non-parole period would amount to an error of law by the Court, in that no special reason existed pursuant to s.10A.

24In support of that submission, the learned prosecutor stressed that although she accepted that the Court was dealing with a low order of heinousness for this crime, the carjack here was still a crime of violence as determined by the Parliament, and in that regard the Parliament's intent is clear.  She submitted to the Court that general deterrence must be seen, given such intent, as paramount, and that not only was such Parliamentary intent being put into the Act, but is demonstrated by the maximum penalty imposed.  She also submitted that apart from the actual injuries which make up the elements of the offence, there has been a significant mental reaction to such injuries, subsequently.

25In that regard, it is appropriate to consider a statement from Croucher AJA in Harringtonv The Queen [2017] VSCA 307. In that case, there was a consideration of the term 'the impact of the offence.' The offence in that matter was of recklessly causing injury. However, I quote from [73], where His Honour said - and I should add, he was in the minority in the circumstances of that case, but I refer to the general principle - he said this:

“While the judge was bound, by operation of s 5(2)(daa) of the Sentencing Act, to take into account ‘the impact of the offence on [the] victim of the offence’, and while s.3 of the same Act provides that ”victim”, in relation to an offence, means a person who … has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender.”

26Then, in regard to those two separate sections of the Sentencing Act, he said:

“I do not think it can be said that the impact of the offence of recklessly causing injury includes serious injury or its effects, even if that serious injury might be said to be a direct result of the act which formed part of the actus reus of the offence of which the applicant was convicted.”

27I find there is a strong analogy to the circumstances of this case. 
It is clear that the impact of the offence, pursuant to the Sentencing Act, was, as accepted by the prosecution, minor.  However, the consequences as referred to in s.3 of such Act, clearly were much more serious and resulted in aggravation of pre-existing anxiety and depression that the victim suffered.

28In addition, the learned prosecutor put to the Court that this action was brazen.  I do not know whether that takes the word 'opportunistic' much further,
but certainly, it was brazen.

29Further, the prosecutor put to me the principle that given that this was a violent offence, and the intent of Parliament, youth should be given less significance than the paramount factor here of general deterrence; Azzopardi v R [2011] VSCA 372, at [44].

30The learned prosecutor further submitted that the aggravated carjacking itself is further aggravated by subsequent driving by the prisoner in a pedestrian-only zone.  I do not accept that proposition.  While I accept that such subsequent driving might be a crime, I refer in this regard to the principles of De Simoni [1981] 147 CLR 383 349. On those principles,
I find that the subsequent driving does not aggravate this very serious charge.  Even though I imagine there is under the Road Safety Act a lesser charge, given that I do not know the full circumstances of the such, on the principles of De Simoni, it would be unfair to the prisoner for me in any way to aggravate, what is already the aggravation of a crime.

31I have closely considered the submissions of the learned prosecutor, as I have those of Mr Brown.  After careful consideration, I have concluded that there are established substantial and compelling circumstances which justify the Court in finding, under s.10AD(1) that a special reason exists to not impose the minimum non-parole period, as prescribed by Parliament.

32I so conclude, after taking into specific account s 10A(3)(a) and (ae), and the analysis of the authorities that I was referred to, and specifically, taking into account the onerous onus on the prisoner, as referred to in Hudgson, [109].

33In the totality of the circumstances of this case, I have found that such compelling and substantial circumstances lead to a finding that a special reason has been proved, and such finding is, I find irresistible and powerful. 

34Pursuant to s.10A(4), I set out the reasons for my finding in writing and order that such reasons be entered in the records of this Court. 

35Coming then specifically to the reasons for such finding which justify a special reason under 10A, such relate to the cumulative impact of the circumstances as required by 10A(3)(b). I make the point that in regard to such consideration, sub-s.(2B)(a), (b) and (c) do not apply to such consideration, as such were not part of the Act at the time of this crime.

36The particular circumstances I have taken into account, which by way of cumulative impact compel me to determine a special reason, are these:

37Firstly, the prisoner himself at the time was a youthful offender, he was 20.  The young offender provisions obviously applied to him at the time, he is now 22.

38Secondly, there is a significant difference between the cases that I have been referred to, in particular, Backer, Ibrahim, Hudgson and Dador.  In those cases, but for Dador, no special reason was found, but each offender had significant priors.  Mr Sandhu has no prior offences whatsoever. In this regard, as to the proposition put by the prosecutor as to the lesser impact of a youthful offender where you are dealing with such a serious crime, the reference to Azzopardi, unlike Hudgson, the violence here is not so dramatic or of such overwhelming degree that there should be a significant reduction in the normal accounting taken by a court of an offence committed by a youthful offender.

39The third matter is that the crime was spontaneous, opportunistic and not planned. It was in no way aggravated, as referred to in the cases that I have mentioned, by being committed in company, planned, there was no utilisation of a weapon as, for example, set out in Backer at [6], and there was no gross threats made, as for example made in Backer [6].

40The fourth reason is that I accept this crime occurred when this prisoner was subject to the impact of a severe drug addiction.  I am told that he has little memory of such, and that is the reason why Mr Brown proffered no explanation.  However, we do know that he was found later that day in the Brimbank shopping centre, and as I say, the police materials tendered today (Exhibit C) indicate that this offence occurred during a dramatic downturn in his life.

41The fifth reason is the force used to satisfy the definition of 'carjacking' was the pushing of the victim out of the way so he could enter the car - that is, the direct force.  The additional non-direct force occurred as he was accelerating.  This caused the victim to let go and fall on the ground.  The injuries caused as a result of that were minor, as accepted by the prosecution.  Such were certainly not intentional, and were, as I have tried to differentiate, consequential.  One can compare the objective criminality and intentional injuries caused in Hudgson and/or in Abdulfatahv The Queen [2019] VSCA 262.

42The sixth reason is that the aggravation, to bring it within the auspices of s.79(A) is pursuant to s.1(b), that in the course of this carjack, injury was caused to the victim. As I say, on all the materials, this injury was a very limited physical injury, grazing to the elbows, knee and left foot, bruising to the right hand, right leg and foot. The photos, Exhibit E, demonstrate the limited nature of that.

43I want to make it clear that in making those comments, I in no way underestimate that a 69-year-old person in these circumstances would clearly have been concerned, and to use the word 'terrified' is not inappropriate,
or perhaps the word 'horrific.'  As I said, the dashcam recording shows Mrs Lipec on the ground, and one is not insensitive to her statements made in the victim impact statement or the statements made by her doctor.

44However, when one analyses both the victim impact statement and the medical report of Dr Sheriff - it is clear that what subsequently occurred is an exacerbation of a prior nervous and depressive condition. 

45Indeed, such suffering caused by such crime, that is, the consequences - is one of the very factors that the Government had in mind when they introduced this legislation.  In this regard, see the comments of the Attorney-General in the second reading speech on 1 September 2016, in particular, at p.3329. 

46However, again, I refer to the comments made by Croucher AJA in Harrington, and also, when one reads the second reading speech and the reasoning that was behind this legislation being introduced, the confrontational, intentional and violent carjacking that the Parliament refers to as justifying the imposition of this legislation, is quite different to the objective gravity of the criminality here.

47In saying that, however, as I have already said, there is no doubt that a significant emotional and anxiety reaction has occurred, upon a pre-existing situation for Mrs Lipec.

48The seventh matter is the issue of delay.  I do not take the view that that delay was inordinate.  Indeed, during this period, due to a subsequent conviction, he served a period of three months' gaol.  However, as of today he has now served 554 days.  He has committed no subsequent offences.

49The eighth matter that, as a result of this sentence, there is no doubt given his status, that he will be deported.

50The personal references talk to the confidence the Court should have in his rehabilitation. Those referees do not in any way indicate that he would be involved in this sort of crime (Ex 2). 

51As was put by the learned prosecutor, his parents are indeed looking forward to him being back home so they can look after him.  However, it is still appropriate to take into account that whatever aims he had in coming to study/live in Australia, such are now totally dashed.

52The ninth factor is the fact that he has now spent 554 days in gaol, approximately 18 months.  While I do not find Verdins five and six factors here, clearly, given his background, he would have faced a degree of isolation, especially given the reduced access to parent calls, of which I was advised.

53The final matter relates to one's obligation to take into account, under s.5(2)(C), current sentencing practice.  As is obvious from the limited number of cases, put to me, and the fact that this is recent legislation, such comparison is difficult, I have made such comparison as I have been able to.

54Such process was relatively recently referred to by the High Court in Dalgliesh (a pseudonym) [2017] 91 ALJR, in particular, 1063 and 1073.  The High Court referred to the fundamental obligation to pass a just sentence.  This Court seeks to pass just sentences in all circumstances.  As the High Court said, comparable cases can serve as yardsticks, and I have indeed used those I have referred to in such way. 

55As I said, due to this crime being recently enacted, there are not a lot to the yardsticks.  I have detailed the precise differences in regard to the proffered cases.  However, I stress again, looking at those cases, there is a significant difference, by way of degree of offence, and prior history of offenders.

56Importantly, as the High Court said in Dalgliesh, [64] to [68], the only expectation that an offender can have of sentencing is of the imposition of a just sentence according to the law.

57Further, in the judgment of Gageler J and Gordon JJ [85], emphasis was made as to the duty of the sentencing judge being to impose a sentence that is appropriate in all the circumstances of the case.

58I therefore find, taking into account the cumulative effect of all of those circumstances, and the totality of such, that the cumulative impact of such justify departure from the presumptive minimum non-parole period and create a special reason for me taking such course.

59As to the sentencing of Mr Sandhu, Mr Brown put the following.  He submitted that the plea of guilty should be seen as utilitarian and indicative of remorse.  He submitted that Mr Sandhu’s initial denials were not pursued, and further, referred to the fact that apart from the timing of the consent to plead guilty, it should be taken into account that there was a number of attempts seeking to settle this matter at a lesser degree, but that was rejected, however, by the prosecution. 

60The second matter he submitted was that I should take into account that not only did Mr Sandhu have no priors, but he has served a significant amount of time in custody, in particular, being the first time he has ever been in custody.  And, taking into account his nationality, and that he would now know that at the end of these proceedings he would be deported.

61In addition was put to me the personal circumstances set out at paragraph 2 of Mr Brown's submission.  I take those into account, and the testimonials in addition that were tendered as part of the plea at Exhibit 2, and I take each of those four into account, to which I have already referred to. 

62As the Court of Appeal said in Hudgson, with the passing of this legislation, that is, the minimum non-parole period, the entire sentencing process becomes problematic and unorthodox [6].  No doubt this is one of the reasons why the Court of Appeal in that matter imposed a sentence of five years with a minimum of four, and in Ibrahim, for example, a sentence of four years and four months was given with a non-parole period of three years.

63I mention those only to highlight the Court of Appeal's comment as to the problematic and unorthodox situation the courts are now left with by these legislative determinations.  That is not in any way to suggest that courts do not abide totally by the Parliamentary legislation and intent.  However, I simply repeat the words of the Court of Appeal.

64In the circumstances of this case, taking into account the maximum sentence, the predominant need for general deterrence, the matters put to me by
Mr Brown and the need for the passing of a just sentence, I sentence Mr Sandhu as follows.  Mr Sandhu, if you would stand up, please?

65On the first charge, the charge of aggravated carjacking, you will be sentenced to imprisonment of three years.

66On the second charge of escape custody, imprisonment of six months.

67On the third charge, being the drug matter, imprisonment of two months.

68I make no order as to cumulation, so that the total aggregate sentence imposed upon you is one of three years.

69In regard to the summary matters, Charge 7, I sentence you to a period of seven days.  Charge 13, a period of one month's gaol.  I make no order for cumulation of either of those upon each other or either of those upon the aggregate sentence imposed in the indictment.

70That makes, therefore, a total aggregate sentence of imprisonment of three years.

71I order that the period that you should serve before being eligible for parole is two years. 

72I declare pursuant to s.18 that the 554 days that you have served to date be deemed service of this offence, and that such declaration be entered in the records of this Court.

73I make a compensation order in the sum of $970.  Have we got that order, Madam Prosecutor?

74MS TOONG:  I believe it's been e-lodged.

75HIS HONOUR:  Well, I will sign that.  And I have also made a disposal and -
I have signed that order.

76MS TOONG:  Thank you, Your Honour. 

77HIS HONOUR:  And I have also signed a disposal order as well.  And I have made the matter under that.

78MS TOONG:  I believe there's a forfeiture ‑ ‑ ‑ 

79HIS HONOUR:  If this sentence was not difficult enough, the requirement to take into account only one factor - that is, the plea of guilty - and make a determination of what I would have done in the circumstances is almost impossible.  However, I am obliged to make such a determination, and all I can say to that is the aggregate effect of the sentencing that I would have otherwise passed, without a plea of guilty, would have been an aggregate sentence of four years and a minimum period of three years to serve.  I have signed all those.  Madam Prosecutor, is there anything else I have got to do?

80MS TOONG:  I believe there is a forfeiture order as well, Your Honour.

81HIS HONOUR:  Yes, I signed that, too.

82MS TOONG:  Yes, thank you, Your Honour.

83HIS HONOUR:  Yes, I am sorry.  So the forfeiture order has been signed.  Disposal order.  Now, Madam Prosecutor, I have not had to do this before. 
As I said, I ordered pursuant to sub-s.10(A)(4) that the reasons be - set out the reasons in writing, and order such be entered in the records of this court. 
I think what should be - the way to do that is simply order that the sentencing reasons, when they are finalised, be filed in the records of the court.

84MS TOONG:  Yes, Your Honour. 

85HIS HONOUR:  The only way I can do it, is it not?

86MS TOONG:  Yes, I believe so.

87HIS HONOUR:  All right.  Can I thank both counsel for their assistance in this not easy sentencing process?

88MS TOONG:  As Your Honour pleases.

89HIS HONOUR:  Mr Brown, given the language difficulties, it is not a matter
I normally do, but if you would like to talk to your client to just explain ‑ ‑ ‑ 

90MR BROWN:  Yes. 

91HIS HONOUR:  As I best read it, he has probably got about five months to go, has he not?

92MR BROWN:  Yes, I was just considering it then.

93HIS HONOUR:  Roughly.

94MR BROWN:  Roughly, until he is eligible, yes.

95HIS HONOUR:  Well, he is eligible for parole, but that will not help him much. 

96MR BROWN:  No. 

97HIS HONOUR:  He will eligible to get on a plane, I think.

98MR BROWN:  Yes. 

99HIS HONOUR:  Perhaps if you just explain ‑ ‑ ‑ 

100MR BROWN:  Yes, thank you. 

101HIS HONOUR:  As I said, Mr Sandhu, you will no doubt get from Mr Brown a copy of these reasons in due course.  But that will take a week or so, by the time it comes back to me and settled, et cetera.  All right.  Thank you both. 
Yes, Mr Sandhu can be taken away.  Thank you.  Ms Toong, you can also express my thanks to Ms Farrell for her assistance.

102MS TOONG:  I will, Your Honour.  Thank you. 

103HIS HONOUR:  Yes, we will stand down.

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