Director of Public Prosecutions v Sanyasi

[2018] VCC 1061

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01829

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATASHA SANYASI

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 July 2018
CASE MAY BE CITED AS:	DPP v Sanyasi
MEDIUM NEUTRAL CITATION:	[2018] VCC 1061

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Duckett	Office of Public Prosecutions
For the Accused	Ms C Randazzo SC	Rainer Martini & Associates

HIS HONOUR:

1Natasha Karishma Sanyasi, you have pleaded guilty to one charge of culpable driving and one charge of being in possession of a drug of dependence, namely Cannabis L.  You also pleaded guilty to a related summary charge of driving an unregistered motor vehicle.  These charges arise out of events which took place on 16 July 2016.  I should, before going any further, add that as I understand it, these proceedings are being filmed so that when an appropriate disc can be made of that recording, it can be made available to the family of the victim.

2Though you were charged promptly upon your release from hospital in August 2016, and you were committed in October 2016, the situation of your health deteriorated and you were again admitted to psychiatric care in March 2017.  In April 2017, the trial was listed for February 2018.  Upon arraignment, at a further directions hearing in December 2017, you pleaded guilty and the plea was listed in early May 2018. 

3The circumstances of the offending was summarised in a document tendered and exhibited which will be retained on the court file.  For these purposes, it is sufficient to recite the following facts, which were uncontested.  You were aged 33 at the time of these events.  You were the holder of a full Victorian driver's licence.  You were living with your parents at an address in Oakleigh south. 

4Dilawer Shah was aged 32 at the time of his death.  He was a citizen of Pakistan and had no family in Australia.  Shah resided in shared accommodation in Fawkner.  He worked as a taxi driver.  You were driving on that day, a Hyundai Accent Sedan.  It had been purchased by you recently and was in as new a condition at the time of the collision.  It had no mechanical faults at the time of the collision.  But the vehicle's registration had expired on 15 July, in fact some five hours prior to the collision.  The deceased was driving a yellow silver top taxi, a Toyota Sedan.  It had no mechanical faults at the time of the collision.

5On the afternoon of 15 July, you were checked into the Hume Villa Motor Inn located on Sydney Road in Fawkner.  You were accompanied by Vishal Prakesh.  Prakesh and you had known each other for some seven or eight months and had formed a relationship approximately a week earlier.  Your vehicle was parked at the motel.  The two of you had been staying in motels together for a couple of nights before the 15th.

6During the evening of the 15th and early hours of the 16th, you were behaving erratically.  Prakesh says you were constantly smoking and at times, he could smell cannabis.  You went to sleep and woke several times and were speaking on the phone loudly.  At approximately 1.30 am, you woke Prakesh and asked him to go to get you a drink.  Then at 4.30 am, you woke him up again and told him that you wanted to go to Adelaide.

7Prakesh said that he did not want to go at that hour of the morning, but you left the motel room shortly afterwards while he was in the bathroom.  Ian Cooper was a guest at the motel that night.  He was woken by your car's horn sounding loudly.  Loud music was playing as well from the car.  He went outside and spoke to you.  You were sitting in the driver's seat of your vehicle.  You told Mr Cooper that your husband was up in the motel room and that he was dying. 

8Cooper could smell alcohol and cigarettes.  You appeared aggressive and confrontational.  He believed that you should not be driving and told you that he would not open the gate for you to leave.  At 4.48 am, Cooper rang the manager, Mr Gibbs.  Mr Gibbs went to the carpark and spoke to you and asked you to turn the music down, however, you turned it up.  Gibbs reached into the car and turned the ignition off, in an attempt to make the music stop, but it kept playing.

9After further discussion, Gibbs walked away from the car.  He then returned and told you he would call the police.  Eventually you put the car into reverse.  Gibbs then activated the security gate to let you out.  You drove off in a southerly direction along Sydney Road.  Shortly before the collision, you failed to stop or brake at a set of pedestrian lights.  The lights were 83 metres north of Lorne Street.  The signal applicable to your vehicle had been red for about ten seconds.

10Mr Kaleah was driving south along Sydney Road in Fawkner.  He was travelling at about 50 or 60 kilometres an hour on his estimation.  Kaleah saw your vehicle pass him at a speed that he estimated well over 100 kilometres an hour, moments before the collision.  The deceased had just completed his shift at the time of the collision.  He was on his way home in Lorne Street, Fawkner.  The collision occurred at the intersection of Lorne and Sydney Road.  His home was approximately 500 metres from the collision scene. 

11Sydney Road is a major road that runs through the northern metropolitan suburbs to the CBD.  The road is in good condition in the vicinity of the collision and is mostly a dual carriage way.  The intersection of Lorne and Sydney Road is controlled by clearly visible signals and has a speed limit at that point of 70 kilometres an hour.  Sydney Road has three lanes of traffic in each direction, as well as dedicated turning lanes and lanes are clearly marked.  There is a grass centre median strip dividing each carriage way.

12The traffic signal at the intersection of Sydney Road and Lorne Street were operating at the time.  The conditions were good and the weather was clear.  The deceased had been travelling north along Sydney Road towards Lorne Street, intending to turn right to head east.  The traffic control signal applicable to the deceased included a turning arrow.  You were travelling south along Sydney Road.  Kaleah says that after your vehicle passed his, the Lorne Street intersection was approximately 200 metres ahead and he could see the traffic lights go red.  He saw the deceased yellow taxi commence its right hand turn.  At the time that he began to turn, the turning arrow applicable to his vehicle was green.

13Mr Kaleah estimates that the lights applicable to the southbound traffic in Sydney Road had been red for five to six seconds, when your vehicle entered the intersection, against the red light.  Later investigations determined that the light had been red for a minimum of seven seconds when you entered the intersection.  Your vehicle collided with the left hand side of the deceased vehicle.  The impact occurred 12 metres south of the stop line at the intersection of Lorne Street.  His vehicle was pushed sideways and knocked over a traffic signal pole which caused the traffic signals to flash amber.

14The taxi then collided with a fence and came to rest about 20 metres from the point of impact.  Your vehicle continued for approximately 40 metres from the point of impact, before coming to rest in the southbound carriage way.  Mr Kaleah witnessed the collision.  He says your red car T-boned the taxi in the centre of the right passenger's side and the taxi went airborne and appeared to rotate almost 180 degrees before coming to rest facing southwest.  Your vehicle did not brake before the collision.

15Mr Booth was driving south in Sydney Road when the collision occurred.  In his car was his friend Mr Rufus.  As they approached Lorne Street, they saw the traffic signals flashing amber and Booth slowed to 20 kilometres an hour and saw the damaged taxi.  He recalls that the passenger's side of the taxi was absolutely demolished.  As they drove slowly through intersection, they observed your vehicle and they saw you sitting in the driver's seat.  You then got out of the vehicle.  You physically were unharmed, but seemed dishevelled and wearing pyjamas.  You were walking around, but you did not approach the taxi.

16Booth stopped his vehicle and both he and his passenger went to assist.  Other vehicles stopped and the public called 000.  Ms Bhana was a passenger in a vehicle that was heading north and stopped to assist. 

17She had first aid training.  She attempted to remove the deceased from the taxi whilst another passenger from a vehicle, Ms Duric, called 000.

18Duric also saw you walking around the road.  Paramedics arrived shortly afterwards at 5.02 am.  A second ambulance arrived later.  Police also attended the scene.  Paramedics established the deceased had no pulse.  They removed him from his vehicle and were unsuccessful in attempting CPR which was ceased at 5.16 am.

19You were behaving erratically after the collision, being demanding and disruptive.  After the first ambulance arrived you approached a paramedic stating you felt dizzy.  She asked you to sit down and wait while she attended to the deceased but you refused to sit down and followed her to the ambulance and got into the back of the ambulance. That paramedic, West, then asked you to get out and you became aggressive, shouting at her and grabbing her by the wrists.

20A bystander pulled you away from her.  A second ambulance arrived at the scene around this time.  You were assessed and taken to the Royal Melbourne Hospital where you were further assessed.  You received no physical injuries but was admitted as an involuntary psychiatric patient.

21You were later transferred to Dandenong Hospital and discharged into police custody on 28 July 2016.  Your handbag was located when you were admitted to hospital and it contained prescription medication and vegetable matter, later found to be cannabis, the basis for the second count.

22Upon your discharge from hospital you were assessed as fit to be interviewed by Dr Gaya, forensic physician at the Victorian Institute of Forensic Medicine and you were interviewed in the presence of an independent third person.  You stated you were the owner of the red car, that you knew you had been in a collision, but you did not remember it.

23You stated that you and Prakesh had an informal marriage, that the day of the collision you remembered being in the ambulance and claimed to have had serious physical injuries and you answered no further questions.  You said you were on medication, Seroquel, an anti-psychotic, Lamotrigine, a mood stabiliser, Valium, Diazepam, both sedatives, and Suboxide Buprenorphine for treatment of opiate addiction.

24Dr Jack Aaron, an addiction medicine specialist, prescribed these medicines to you and you said you could not remember if you were taking those medications at the time of the collision.

25An expert in collision reconstruction, Detective Sergeant Meehan, conducted a reconstruction analysis of the collision and concluded that at the time of the collision your vehicle was travelling at 137 kilometres an hour.

26Airbag data from your vehicle showed that in the last five seconds before impact the vehicle was being driven at 99 per cent throttle between 4600 and 5000 rpms.  In the 4.5 seconds before impact the vehicle had accelerated from 126 to 138 kilometres per hour.  She concluded that excessive speed and failing to stop for a red light were the causes of the collision.

27Toxicology tests were conducted on samples taken from you and detected in your blood was some alcohol, Diazepam, Nordiazepam, Temazepam and cannabis.

28The maximum penalty for culpable driving is 20 years' imprisonment or 2400 penalty units.  By this penalty the legislators have indicated the seriousness of this offence.  It is the first matter that I take into account in reaching a disposition.

29It was conceded by the defence during the plea hearing that a term of imprisonment was appropriate and inevitable in this case, and it is also notable that the circumstances in which the offence is committed vary enormously and the penalty has to be determined on its own particular facts and circumstances.

30In the assessment of these factors the starting point is the common one and the most tragic, that is that a life has been lost by the death of the victim and this is a serious and weighty consideration given that the fact of life and the value of life is one which the court is bound to protect and uphold by its disposition.

31In this task the victim impact statements provide important material which I take into account.  The first was by Imran Rana, a childhood friend to Dilawer Shah, who has shared a house in Australia.  He writes of missing his friend and of Mr Shah's kindness to everyone and the difficulty here his friend and family have in recovering from his loss.

32Waqas Amjad is another friend who lived with Mr Shah from 2011.  He described Shah as the centre and organiser of most social events involving his friends.  He describes the friends' sorrow and that of Mr Shah's family who are left only with his memory.

33Muhammad Bilal is another friend who shared a house with Mr Shah who considered him a brother.  Each of these persons described the loss of connection and grief amongst his friends.  Mr Bilal escorted Mr Shah's body on the sad trip back to Pakistan to Mr Shah's family and he speaks of his loss.

34Muhammad Asif, another close friend, writes of the traumatising effect of seeing the wreckage from the scene as a shocking experience which has been life changing.  He also accompanied Mr Shah's body back and the sorrow and grief of this task has left an indelible sadness in his life.

35Mr Shah's family have communicated to the court the impact of this offence upon them by describing it in writing and on video endeavouring to describe their sorrow and grief.  Mr Akbar Shah, Dilawer Shah's seventy-five year old father, wrote a letter to the court in which he describes his beloved son as the backbone of his family whose irreparable loss is intolerable.

36He says that his family is in agony and distress, shaken by this death.  Dilawer Shah was not only a beloved son but was endeavouring through his work and life in Australia to provide a better future and financial security to his parents in their old age.

37The family members reiterate in their audio visual message the great impact of his death upon them, an unexpected death in a foreign land while pursuing efforts to assist the family in tragic circumstances and that cannot be adequately comforted by any sentence of this court.

38But I do take the impact into account in order at least to provide a sense of justice which can begin to address the kind of social rehabilitation which our courts have spoken about for many years, best described by His Honour Justice Vincent in DPP v DJK [2003] VSCA 109.

39The Court of Appeal in DPP v Neethling [2009] VSCA 116 observed that these remarks apply with particular force to an offence of this devastating kind. I am painfully conscious there is no court sentence can render full justice to the loss of a son. The value of that man's life cannot in any equivalent sense be expressed by a mere number at the end of this sentence.

40I take into account your plea of guilty. I do not consider that given the chronology that this was an early plea or at first opportunity requiring the maximum discount available. This consideration however must be considerably tempered by the acknowledgment of your rather fragile mental state in 2017, particularly after August, when you made an attempt at suicide, with its significant medical sequelae. Though it is true that the available evidence suggests you did have some gains and positive periods before August, during which your mental and general health were stable allowing a trial date to be set in February 2018, in April 2017, this was undone by the circumstances of August 2017 and thereafter by December 2017 you recognised that a plea was the inevitable course, particularly given the opinions of Dr Zimmerman in October 2017 following upon the opinion of Dr Sullivan in March 2017, both who found that a defence of mental impairment would not be available under the criteria set out in the Crimes Mental Impairment and Unfitness to be Tried Act, and you were therefore fit to be tried.

41Your plea, however, has both utilitarian benefit of having avoided a trial, its costs and inconvenience and its trauma, and is accompanied by sincere and deep remorse which I accept you have expressed sincerely on a number of occasions to many different people.  Your sentence will be discounted because of your plea.

42I take into account your prior history. Although it is not a prior criminal history, I take into account your general background.  In relation to your precedents you have four prior infringement notices, three in New South Wales, one in Victoria.  The earliest in time is a Victorian notice of exceeding the speed limit by 30 kilometre per hour but less than 44, at which your licence was suspended for a month back in 2002.

43In 2008 you received a traffic infringement for disobeying an emergency stopping lane sign and other such offences and you were fined $185.  In 2010 you were again fined for driving using a hand held mobile phone, and in 2011 you exceeded the speed by more than 10 kilometres an hour and you were fined.

44Your VicRoads record was also placed before the court.  That not only reflected the 2002 notice mentioned above, which attracted a licence suspension, but also all your demerit points schedule, which records ten losses of demerit point occasions, two for disobeying a traffic control signal and eight instances of exceeding the speed limit.

45Although I make clear that these are not criminal convictions, they are merely an indication, particularly between 2013 and 2016 that on nine occasions you were detected driving over the speed limit.  Although that provides some inclination on your part to frequently exceed the speed limit, I do not consider that I can use them in any meaningful way as one would criminal priors.  The nine occasions of speeding were either for less than ten kilometres an hour or less than fifteen, I think on one occasion.  Despite this frequency I do not consider that these demerit points are so exceptional or extraordinary to affect the outcome or prove a regular contumacious recklessness or gross negligence on your part when driving. However clearly you do not have a great driving history.

46Culpable driving is properly regarded as a type of involuntary manslaughter and apart from the maximum, which I have already mentioned, it is notable that the maximum penalty has increased steadily, which reflects not just the will of parliament in considering the offence as serious, but probably reflects community thinking about the offence.  The prosecution submitted that this was a serious example of offending, at the mid to high end of the mid-range of this type of offence.  The prosecution argued that, "An assessment of the seriousness was made by reference to the degree of departure by the prisoner from the standard or reasonable care expected of an ordinary driver and by the seriousness of the incident".  By which I understood to be a reference to the consequence of the death which took place.

47The departure, it was submitted, was informed by various factors such as the degree or risk and potential harm involved in the manner of driving by the prisoner and the foreseeability of the risk created by your driving.  As I said, the legislators rightly placed a premium on human life and the real substance of the offence is the driving in association with the taking of a life.

48Good character attracts a more cautions leniency in such cases as the objective circumstances should not give way to subjective circumstances of the offender.  General deterrence must be given considerable weight therefore and the sentence imposed must take into account the variations and the moral culpability of people responsible.  In my view, an assessment of the circumstances of the events placed this offence at the mid-level of the medium range of offending.

49Dr Sungaila in her statement made for the court says she is unable to say that you were incapable of control of your car.  She wrote that cannabis could have affected you but could not determine more closely or clearly than that.  While the prosecutor submitted in writing that you should have been aware that the use of illicit drugs would lead to very serious consequences, during argument the prosecutor had to concede that no such certainty existed in this case.  It was considered that even if some of your past psychosis were drug induced, it is not able to be ascertained or asserted on the standard required that you must have been aware of the effect the illicit drug will have on you and your driving at the time of the offences.  At least that was the argument.

50Towards the end of the plea, by reference to the evidence there was further discussion about this difficult problem.  I accept that the opinion of Dr Sullivan is the most persuasive.  His dual diagnosis and expression of uncertainty as to this matter leads me to conclude that although the psychosis which you were experiencing at the time of driving was in part due to your illicit use of drugs, in a parallel sense that same psychosis may have been concurrently affecting your driving because of a deterioration in your mental health.

51At the crucial moments in time the evidence suggests that you would most likely not have been aware of the danger you would expose to yourself and others by your driving.  That is not to say that you were an automaton but, rather, that in the grip of a psychotic episode you drove in a way and at a speed and made decisions which were to have catastrophic consequences.  Your moral culpability can be reduced but it cannot be either said to be low or to lead to a relatively low sentence.  I will attempt at the end of this sentence to explain how it is that I have looked at that particular question in detail.

52Having summarised the expert's opinion, the defence submitted that the five limbs of the principles of Verdins applied in this case in that you were suffering from a psychotic illness which affected your ability to appreciate the wrongfulness of the conduct and impaired your ability to make calm and rational choices.

53This is a clear connection between the illness on the offending and was demonstrated giving rise to the application of the first four principles which are restated in Verdins.  It was argued you have no awareness of the probable consequences of the effects of the drug on your condition and did not foresee the consequences of your ingestion of the cannabis quoting from a number of Court of Appeal decisions.  The submissions are contained in three documents tendered by the defence and exhibited.

54In the end it is my view that the grossly negligent manner in which you drove was probably caused by an exacerbation of your pre-existing underlying mental illness, experienced as an episode of psychosis in which substance use occurred in parallel, in effect an attempt by you to quell your symptoms by its use.

55One matter tends to moderate culpability, the other exacerbates it so that general and specific deterrence, as well as denunciation, will be sensibly moderated in your case.

56I will come to Verdins' fourth and fifth limbs in a moment after I summarise the expert evidence upon which I rely in making my conclusion.  I should state that the material in the evidence led was voluminous and complex.  Examination-in-chief and cross-examination I heard, I confess, did not assist me. It appeared either a recitation of the contents of the various statements, or cross-examination about peripheral matters, which compelled me to have to focus by questioning on what was stated numerous times by me to be the crucial issue of the examination, that being the degree of moral culpability involved.

57Dr Sungaila provided two reports, one dated August, the second September 2016.  She is a highly qualified and experienced forensic physician employed by the Victorian Institute of Forensic Medicine.  Amongst a number of aspects she noted that your responses were inappropriate and your behaviour was found to be bizarre by the ambulance officers, that you did not make sense and it was difficult to clarify details, that you were unable to tell them why you were travelling at that time in your pyjamas and you said that you were having a miscarriage, but there were no signs of bleeding on you.

58She reiterated that blood was taken from you for toxicology and it showed the presence of Diazepam, Nordazepam and Tetrahydrocannabinol, cannabis.  She made the point that Diazepam is a member of the benzodiazepine group of sedative drugs.  It has a long duration of action.  Its actions include an increase in reaction time, impairment of perception, judgment and concentration and drowsiness and causes a reduction in performance of complex tasks such as required in driving.

59Nordazepam is a metabolite of Diazepam and has essentially the same effect.  There is only, she said, a weak association between the blood level of Diazepam and impairment.  The risk of a crash is more pronounced in the first few weeks of use than after several weeks when tolerance to some of this effect has developed.

60She then spoke about Seroquel, Lamotrigine and she then went to describe the cannabis and the THC being the active component in cannabis.  As a central nervous system depressant and hallucinogenic cannabis exerts a generally negative effect on psychomotor skills such as those required for driving.

61In large doses and particularly in combination with sedative drugs the drug is known to have a profound impairing effect on driving skills.  Concentrations of THC peak rapidly after smoking and fall to low levels by three hours and so it is difficult to establish a relationship between a person's THC concentration.

62However it is possible for an individual, she said, to be impaired with extremely low levels of THC in their bloodstream, which was a reference to the low level in our bloodstream.

63Dr Sungaila stated that your driving behavior did not suggest the effects from either THC or Diazepam because the levels of drugs found in your blood were not at a level which would be expected to cause significant impairment, although some impairment is possible.

64You stated that you were a regular user of the drug and so Dr Sungaila said it was probable that tolerance had developed.  She concluded that she was unable to say that in relation to the drugs found in your blood you would have been incapable of proper control of the car, but documents provided to her suggest that there may have been mental issues active at the time of the collision.

65In her second report Dr Sungaila derived the following facts from the medical record amongst a number of others.  On 16 July 2016 you were taken to the Royal Melbourne Hospital following the collision and an assessment was made for your involuntary admission.  The opinion of the doctor completing the order was that you were thought disordered and expressing delusional thought content and did not exhibit the capacity to make choices about surgical treatment.

66On 17 July the order continued that you were psychotic and required immediate treatment.  You stated you were having a miscarriage but you were found not to be pregnant.  You gave nonsensical answers to questions.  You were allotted a nurse for all shifts, that is 24 hours, and a psychiatric assessment found you to be psychotic with effective component, hypomanic and on 18 July, upon review, you told the doctor that in relation to the collision you felt sick, that your ovaries were pulsating and you admitted to cannabis use the day before.

67Dr Sungaila in her opinion stated in this second report, that it is clear from the medical records that at the time of the collision you were psychiatrically unwell so as to have affected your judgment and insight.  In relation to the relationship between drug use and your mental state she deferred to psychiatric opinion.

68Four experts gave evidence by way of either a report or both reports and evidence in court.  Dr Kojadinovic in a report dated 20 November 2016, amongst a number of other things, wrote that she had been your treating psychiatrist since February 2015 and that when she met you, you confirmed certain symptoms and reported low energy, poor appetite and suicidality more prominent when you are under the influence of substances.  That is what you told her.

69The Crisis Assessment Team was involved for two weeks, triggered by it would appear, a relationship break up.  Dr Kojadinovic spoke about your history of mental illness in her report.  You attempted suicide for the first time at age 14 by overdosing.

70You experienced psychotic episodes when you presented as paranoid and grandiose with auditory and visual hallucinations.  You were treated in intensive care on the psychiatric ward at one of the hospitals in Sydney where you lived at the time.  You gave her a history of substance use.  You started using cannabis at the age of 17 and smoked up to a gram per day.

71You also took amphetamine based substances and then heroin, cocaine and ecstasy.  Your alcohol intake had been on a social level.  You were aware of a seriousness of your habit and sought help many times.  You went to alcohol and drug rehabilitation centers four times, the last time in your early 20s.

72You also reported abstinence for about five years.  You told the doctor that you were married at age 25 to a man whom you had been with for 12 years.  He was a heavy drinker of alcohol and your cannabis use played a major part in your separation. After your divorce you returned to Melbourne in 2013.

73There you started a new relationship that lasted 18 months.  Its breakup brought on emotional disturbance and relapse with cannabis use.

74In relation to the accident, you attended the appointments of the Delmont consulting suite eight times in 2015, upon her recommendation.  You agreed to take your medication and to attend the Delmont Day Program for the Substance Use and Addiction Program.  However, you told Dr Kojadinovic that you smoked cannabis intermittently and you could not attend work for a week because you felt unwell.

75The doctor also referred to mood stabiliser Lamotrigine which was increased to 125 micrograms per day.  A letter from Dr Jacka dated October 2015 confirmed your continuation of Suboxone also having been increased.  You showed interest in your treatment and Dr Kojadinovic noted that you never avoided medication and actively participated in making decisions about it.  You reported your compliance with medication, but also symptoms of restless sleeping, poor appetite, lack of energy and you were offered another admission to Delmont Private Hospital with which you disagreed.  However, you presented in March 2016.  You had apparently started cannabis smoking again, but stopped two weeks prior to presentation.

76After the motor collision, you presented highly agitated and psychotic and treated as an involuntary patient.  After a period of detention, you stayed at Delmont Hospital between August 2016 and September.  Dr Kojadinovic took over your care from 19 September.  You attended hospital group programs, primarily addressing your substance use problem.  You took your medication regularly and participated in treatment decisions.  Your drug screenings were always negative and you were discharged home on 29 September 2016.

77The second report from Dr Kojadinovic dated 30 April 2018 highlighted two admissions to the Delmont Hospital Inpatient Unit in 2017.  The first between 6 March and 30 March 2017 and the second, between 17 May and 7 June.  You were able to talk about the collision, about your regrets and feelings of guilt because of the tragic consequences.

78On 14 August, Dr Kojadinovic received an email to inform her that you were hospitalised after an overdose with a prescribed medication.  You were at the Monash Medical Centre and required treatment and rehabilitation for a prolonged period of time.  You were discharged home only on 2 November 2017.  You were in a wheelchair after discharge, caused by your suicide attempt.  You were subject of severe chronic pain and that led for pain management to your hospitalisation in March of 2018.

79When the consultant, in relation to your pain management, recommended the commencement of Tramadol, the painkiller, you were then also informed that the interaction with your psychotropic medication could result in serotonergic syndrome, as a result of that interaction.  Consistent pain has been effecting physically and your mood.  Dr Kojadinovic says you are extremely vulnerable to stress and the substances that you used in the past to suppress your stress anxiety and depressive feelings obviously left you very fragile in relation, both to your physical and mental health.  She states at the end of this report, "Taking away this complex support would result in serious deterioration in your mental state, therefore r prognosis in the case of imprisonment is extremely poor".

80Dr Zimmerman, in a report dated 19 October 2017 examined you to determine whether you had a mental defence impairment.  Dr Zimmerman is an experienced consultant forensic psychiatrist and she made some important notations in her reports.  When taking a psychiatric history, you informed her that you had psychotic episodes in the past and that these have always been accompanied by beliefs involving babies.  You felt that they occurred, she noted, when you had been using drugs. 

81Later in the report, about your psychiatric history, and from clinical files, she was informed that you were admitted following a serious overdose that led to the condition in which skeletal muscle breaks down rapidly.  This is subsequent to the suicide attempt, which resulted in immobility, acute kidney injury and acute compartment syndrome, requiring eight operations to reduce the swelling and was related with the committed suicide of a friend, the day prior to your own overdose.  You spent twenty-two days in the Intensive Care Unit, and you were extubated after five days.

82Dr Zimmerman referred to Dr Kojadinovic and the fact that you had been her patient since February.  A general practitioner, she notes in her report, was concerned about her fluctuating mood, increased anxiety and insomnia and noted a history of bipolar disorder and drug induced psychosis.  Ms Sanyasi informed Dr Kojadinovic, says Dr Zimmerman, that you also experience low energy, poor appetite and suicidal thoughts, particularly when effected by drugs.

83A letter from addiction medicine specialist Dr Jacka dated 30 October noted Dr Zimmerman, reports that you attended at the Addiction Medicine Unit in Monash Health after the Emergency Department of Dandenong Hospital in March 2014 with chronic pain.  Dr Jacka noted a ten year history of taking pain medication and a history of experiencing with illicit substances. 

84Investigations failed to identify physical causes for the pain, says Dr Zimmerman.  Dr Jacka noted the diagnosis of bipolar disorder made in Sydney, but also the absence of clear episodes of mood dysregulation, in the absence of substance misuse.  And again later, in commenting about a number of admissions, culminating in an admission in Wyong Hospital in 2012.  The notes from that admission show that you presented in an agitated and distressed state, were using cannabis daily at the time and were diagnosed as having a possible drug induced psychosis.  You were described as irritable, aggressive, believing you were pregnant and not sleeping. 

85As to that substance use history, you informed her, this is Dr Zimmerman, that you had used cannabis in order to cope with anxiety, up to a maximum of 1 gram a day.  You said that it is hard to recall how much you had used.  You also spoke about having used other drugs in the past.  Dr Zimmerman noted that you said you had sought help for your drugs repeatedly and attended rehabilitation centres four times.

86When commenting on the events of that particular day when the collision took place Dr Zimmerman noted what Mr Cooper had said to you at the time when you told him that your husband was dying upstairs and became aggressive and irrational, Mr Cooper told you that he did not think that it would be safe for you to drive.

87She noted your irrational and inappropriate and bizarre responses such as that you were having a miscarriage and that was your wedding night, and she concluded her report by an opinion which starts:  "Ms Sanyasi is a 34 year old woman with a long history of substance abuse and contact with mental health".  She refers on that p.10 of her report to a personality disorder and episode of drug induced psychosis, and she says, "Continued cannabis use, as reported by parents, to have experienced a deteriorating mental health for some time with growing irritability and belief that she was pregnant".  The diagnosis at the end of this admission in Monash Health was of drug induced psychosis on a background of borderline personality disorder.  She concludes at p.11, "I believe that Ms Sanyasi experiences episodes of drug induced psychosis, currently in omission.  There is no evidence of psychosis in the absence of a substance misuse".

88The very last page of her report she states she has considered the availability of a mental impairment defence, and while she believes that you, Ms Sanyasi, suffered from borderline personality disorder, she did not feel that you met the criteria for an enduring psychotic process such as schizophrenia or bipolar disorder.  At the time of the offending she says you reported cannabis use although you struggled to be precise about the quantities.  You also reported use of GBH in the days prior to the alleged offences.  All of these, particularly in combination, may precipitate a psychotic state in a vulnerable individual such as you.

89There are clear reports from clinicians, says Dr Zimmerman, that on the night of the 16th you were indeed psychotic after the car accident and it seems likely that the motivation for you to have driven that night was psychotic in origin.  She says, "I believe that Ms Sanyasi was aware of the nature of the actions that constituted the offending, that she was aware that she was driving a car in a distressed state at the time.  I believe that her ability to reason about wrongfulness with a modicum of sense and composure would have been impaired by her psychotic state.  I note that the amount of drugs in her bloodstream at the time were unlikely to have directly impaired her judgment to a significant effect.  However, I believe that it is likely that her psychotic state was related to her recent use of drugs".

90Mr Abbott also provided two reports.  He is an experienced psychologist.  His first report of 7 November 2017, after taking a personal history and an educational and occupational history as well as a relationship and sexual history, he considered your mental health.  He wrote that you describe numerous instances of psychosis in which you thought the television was talking to you and experienced visual hallucinations.  You focussed primarily on the Wyong admission, which was a suspected drug induced psychosis.

91When writing about your substance use history he wrote that you reported cannabis use from approximately age 17.  This was your reward after work and you used cannabis to relax.  "I loved weed.  It was my drug of choice".  You reported to him that you often developed paranoia when using cannabis.

92At paragraph 2 under his opinion and conclusions he states, "This history that I obtained finding on the psychometric assessment and a review of the supplied documents indicate a historic pattern of drug and alcohol misuse and a diagnosis of polysubstance abuse is evident.  She has recurring difficulties" - referring to you - "with substance abuse including cannabis.  You seem to minimise the use and state that you remain abstinent since the collision.  You readily acknowledge using cannabis prior to the alleged offence", and at paragraph 5, "Your behaviour precipitating the alleged offence suggest increasing psychosis associated with cannabis use.  Although she was psychotic at the time of the offence it is not apparent whether this was a drug induced psychosis.  Your psychosis impaired your judgment severely and impeded your ability to think clearly and make a considered decision.  Your mental health difficulties", says Mr Abbott, "are complex and may have contributed to impaired mental functioning leading to the offending behaviour.  The substance abuse and recurrent episodes of psychosis are important contributors in exacerbating your mental health problems or further disinhibiting your behaviour".

93He wrote in his second report of 27 April 2018 that you have recurring difficulties with substance abuse, you tend to minimise your use and he states, "In my opinion", he says, in April 2018, you appeared in imminent danger of self-harm.

94Dr Sullivan prepared a comprehensive report, dated 26 March 2017.  He is a very experienced consultant forensic psychiatrist.  He took a personal and medical history, a psychiatric history and a substance use history.  Having noted the various reports available to him, which included some drug induced psychosis admissions in 2012, 2013 and 2016, Dr Sullivan wrote, at p.9, "This is a complex case marked by multiple diagnoses in combination of drug use, personality disorder and mental illness.  Further complicating this, Ms Sanyasi's held different opinions about her diagnosis from her treating psychiatrist and has in the past minimised drug problems and consequently information about substance use is somewhat unreliable".

95Dr Sullivan wrote, "I consider that she would clearly satisfy a diagnosis of borderline personality disorder described as emotionally unstable personality disorder in the international classification of diseases".  He wrote that, "The apparent diagnoses of polysubstance abuse or dependence involving cannabis and others at the time of my assessment she reported abstinence although no information was available to corroborate this".

96He also said that the cardinal features of post-traumatic stress disorder were not apparent at his assessment and he considered that that diagnosis of post-traumatic stress disorder may have been present in the past but has now attenuated and resolved, although features of borderline personality disorder may reflect its sequelae.

97"The account of your behaviour preceding the alleged offence", wrote Dr Sullivan, "suggests increasing psychosis associated with cannabis use".  The two most crucial parts of his report are at p.10, the bottom two paragraphs, which read,

98"Thus although it is clear that you were psychotic at the time of the alleged offence, it is not so clear whether this was a drug induced psychosis, or a psychotic illness in which substance use was not causative, but may have occurred in parallel, possibly in a misguided effort to quell symptoms".

99The question is not able to be answered based on the information preceding the alleged offence.  As Ms Sanyasi was not in regular contact with a psychiatrist and information from the addictions physician does not provide information about her symptoms, their cause or their response of treatment.  I have considered the availability of a mental impairment defence, noting the above uncertainties.  "At the time of the alleged offence", Dr Sullivan writes, "I consider that Ms Sanyasi was aware of the nature and quality of her conduct.  I consider she was unable to reason with a moderate degree of sense and composure about the wrongfulness of her conduct, in that her driving was influenced by her disorganised and delusional state.  However, on balance, I consider that her mental impairment was not due to a disease of the mind, but rather due to a drug induced psychosis and on that basis, I do not consider a mental impairment defence would be available to her". 

100Nevertheless, he says at the end of that paragraph.  "I acknowledge that this is by no means a clear cut case".

101I wish briefly to discuss some of the evidence that - particularly Mr Abbott and Dr Sullivan gave.  In evidence Mr Abbott agreed with Dr Sullivan about your proper diagnosis, that is, they discounted in effect, post-traumatic stress disorder, as well as bipolar.  Both agreeing that borderline personality disorder was the proper diagnosis, which is a recognised mental illness.  This disorder forms the foundation for effective dysregulation.

102Mr Abbott at p.44 of the transcript says, "So this is someone", in reference to you, "who has great difficulties managing and regulating her emotions.  So often at times, we see strategies, dysfunctional strategies to deal with intense emotions developed over time, as well as substance abuse, other disruptive behaviours.  In her case it is mostly to do with substance abuse in order to deal with the emotion dysregulation that she is experiencing".

103When giving evidence he said that your episodes of dysregulation were essentially related to your substance misuse which he described as an attempt to regulate emotions, in an environment in which the disorder tends to disregulate them.  In other words, you attempt to regulate your emotions, but often by substances which failed. 

104At p.48 he agrees that his conclusion is that substance may have made that mental condition worse at the time, but he cannot assign causes for the collision to one or the other.  At p.54 it is put to him that your behaviour precipitating the alleged offence suggests increasing psychosis associated with cannabis use and increasing psychosis suggests that there was already a psychotic or psychosis episode occurring at the time of the cannabis used and he answers, "It seems like her mental health was deteriorating quite rapidly, leading up to this instance, from reports from the family that she was becoming more erratic and leading up to the cannabis used, yes". 

105In your opinion, you say that although she was psychotic at the time of the alleged offence, it is not apparent to you whether this was a drug induced psychosis and he agrees with that proposition.  Asked by me at p.55, he gives this answer, "She would not have had an ability or insight into understanding the probable consequences of taking cannabis at the time when she was experiencing a psychotic episode and that use was likely to make things worse, based on your past experience". 

106When I asked him why do you say that, he said "Because she has repeated this pattern of behaviour before.  There is an impulsivity to her behaviour and a lack of foreseeing consequences of her behaviour.  She would not consider that she will have difficulties getting a car and driving and having proper control of that vehicle". 

107I will not repeat the evidence of Dr Kojadinovic.  At  p.138 Dr Sullivan says, "I formed the view that the most significant diagnosis was a borderline personality disorder.  I also consider the varying fluctuating forms of substance abuse had been relevant over time.  It was also clear that either one or both of those, likely both in combination, had at various time caused her to present with a much more disordered mental state, which was described as psychotic or manic and in most cases, that appeared to be associated with substance use.

108Borderline personality disorder is a longstanding disorder which is present from childhood and it is present in a range of domains across a person's life, including employment, relationships and emotional life.  What we know is that people who have a borderline personality disorder are more likely to have significant traumas in their upbringing.  He noted that obviously in your case, there is an association with sexual abuse when you were a young girl, which was discussed during the course of the plea and which was accepted to have taken place".

109"We also know", Dr Sullivan continued, "that people with borderline personality disorder have a marked increase in prevalence of substance use and in clinical experience, they report that the substance use is associated with relief from distress.  They are more prone to substance use.

110Because there were traces found in your system at relatively low levels, what that means is that the substance itself did not induce necessarily the acute symptoms, but rather that it may have induced a psychotic or a mixed psychotic and effective state.  People who are predisposed to developing psychosis require lower doses of drugs to affect them.  So what we have is a woman who is by virtue of her personality vulnerabilities, prone to using substances and by virtue of her personality vulnerabilities, more prone to develop a disordered mental state when using those substances".  At pp.144, 145, I asked him a number of questions about your capacity to make sensible decisions and he answered that that capacity would be significantly diminished by psychosis. 

111Towards the end of the lengthy evidence, Dr Sullivan said this.  "From my clinical experience in dealing with people with psychotic, it sets a very high standard of rationality and judgment which is not present in people with a psychosis sufficient to be hospitalised.  What we see instead is a preoccupation with delusional themes of hallucination, disorganised thinking and poor judgment, which indicates that a person cannot weigh up and appreciate what the best course of action is”.

112You were aware in the nature and quality of you conduct but on balance he considered that your mental impairment was not due to a disease of the mind, but rather to drug induced psychosis, a psychosis induced by substance use.

113It is based on these pieces of evidence that I have arrived at the conclusion which I have stated at the start, and I will return to it in a moment.

114I have taken your person history into account as contained in the many reports received, particularly your work record, educational history and achievements which is to your credit, and especially those matters which pertain to your early sexual abuse which you experienced when you were young and which I have no doubt have had a profoundly negative effect on your mental state.

115These events gradually also shaped your relationship in adult life.  I take into account the support of your family which is in any difficult and complex rehabilitative prospect is very important.  I take into account your father's and your sister's impressive evidence.

116These people are protective and positive supports for your future.  I accept that both Verdins' limbs four and five apply to you to moderate deterrence, both general and specific, but particularly limb five.  This latter effect is not just inevitable because of the mental health in question, but because of the post-offence circumstances which have occurred which I accept mean that incarceration will not only have a likely adverse effect on your mental health, but will affect your general wellbeing given the serious sequela to your suicide attempt of August 2017.

117In relation to your mental health all experts agree reclusion will prove to be difficult.  From a health point of view both from your rhabdomyolysis, a serious condition in which skeletal muscles break down, and its complications which I have already mentioned, including kidney functioning, severely impeded mobility and chronic serious pain, not only will make you vulnerable in gaol but will make incarceration weigh more heavily than it would on a person of normal health.

118That also must moderate punishment.  The defence submissions received recently about your detention on remand since the plea confirms these matters, but also confirms that Justice Health has admitted you to the Marmak Unit and you have been on medication and medication compliant.

119Without doubt, based on the expression of opinion from various experts and on the opinion of Dr Bates in the letter dated 19 June 2018 which was tendered this morning, chronic pain will need to be managed in a multi-disciplinary approach and although this will be challenging in the end the court must have confidence that Justice Health will do its utmost to manage your health in prison.

120In endeavouring to take all relevant matters into account I have not only read all the medical reports which were tendered, but all the authorities which were handed up and referred to in conjunction with submissions about sentence, together with a sentencing snapshot number 200.

121I raised the sentencing amendment, Sentencing Standards Act 2017, during the plea.  Although s.162(3) does not prevent the court from taking into account the effect made by this Act on current sentencing practices, it is these practices which remain the most relevant and must be considered and were considered by me.

122I have considered them with a view to the High Court decision of Dalgleish and I am content that this case does not call for me to take into account the applicable standard sentence.

123The determination of my sentence in this case happens to approximate the standard sentence, but that is utterly and completely unaffected by that measure and the close proximity of length of sentence is purely coincidental.

124I have read and considered the many authorities cited in argument and have particularly noted those which give some guidance as to assessment of moral culpability.  In R v Sebalj [2006] VSCA 106 the trial judge ruled that the applicant was suffering only from a drug induced psychosis and not a disease of the mind.

125Accordingly the defence of mental impairment was not available to him.  There was doubt then raised by medical reports whether that state could simply be attributed to the effect of drugs upon a vulnerable individual or whether it was a manifestation of his schizophrenia.

126This the Court of Appeal said seemed likely to remain a matter of conjecture.  In the context of a sentence appeal Justice of Appeal Vincent said:

"It would be seldom that a self-induced psychosis would result in a significant lowering of the sentence imposed".

127The appellant's psychosis in that case was either indicative of the onset of a subsequently diagnosed paranoid schizophrenia or was of a transient nature brought on by his endeavours to withdraw from drug use.  In either scenario His Honour thought his level of culpability was low.

128President Maxwell agreed that psychosis is an archetypal instance of mental illness and a person in the conditions so described is severely disturbed than in an important respect out of touch with reality.  The label is not important.  What matters is whether and to what extent the condition can be shown to have affected the mental capacity of the offender at the time of the offence and or at the time of sentence.

129In R v Martin [2007] VSCA 291 the court comprised of the President, Justices of Appeal Redlich and Nettle, as he then was, dealt with a sentence for offences committed in a state of drug induced psychosis. The appellant was in the grip of an acute psychotic illness which had been essentially precipitated by and maintained by his ongoing use of illicit drugs.

130There was, as I find was the case here, full capacity of persistent goal directed action and knowledge that a collision could result in the death, albeit with a completely abnormal frame of reference.  The trial judge had held that psychosis was not a mitigating factor at all because the psychosis was induced by the appellant's own illegal act, the taking of drugs.

131Therefore his moral culpability was not lowered.  Their Honours agreed the applicant's moral culpability was not reduced by reason of his psychotic state but would not endorse the general proposition which underpins this conclusion, that is that psychosis or other mental illness which is drug induced can never be a mitigating factor because it is the result of the offender's own act.

132Their Honours went on to describe cases where the offender's psychotic state is drug induced but nevertheless treated as lessening the offender's culpability.  They gave the example of an offender who might have no awareness because of lack of prior knowledge or experience that the ingestion of a particular drug might trigger a psychotic reaction.

133In such a case they said the resulted impairment of mental capacity might be regarded as involuntary.  That is not the case that we have here.  In your case your background clearly shows that you must have had some awareness because of that prior knowledge and experience due to your previous admissions under those circumstances.

134Their Honours in Martin mentioned the example of Sebalj where the psychosis might occur as the offender attempts to withdraw from use of the drug which was nevertheless the cause of the psychosis.

135That again is not your case.  Their Honours emphasised the critical factor in determining the significance of drug induced psychosis for sentencing purpose, is the degree of fore knowledge on the part of the offender. I have endeavoured in describing both the contents of the reports and the evidence of the experts, to highlight the degree of foreknowledge, which you had, in relation to the combination of drug use with your mental state.

136Their Honours quoted Wright, 1997, 93 Australian Criminal Reports, 48, where the concept of reckless intoxication was applied to drug induced psychosis. There the Court of Appeal in New South Wales held the Sentencing Judge had erred in treading the existence of the psychotic state as a mitigating factor, because the respondent by his recklessness had brought about the episode of psychosis.

137"The critical question will be", said the Victorian court, "what the probable consequences of the ingestion of the particular drug by the offender were and whether the offender foresaw those consequences.  In Martin, the applicant had multiple experiences of drug induced psychosis and the court found he was well aware that when he took drugs, he experienced delusions and paranoid hallucinations and would likely lose rational control".

138This is similar to your situation.  In Martin, he had been warned of this danger and could not have failed to appreciate that this was so and there was a high degree of likelihood of behavioural disturbance and risk to himself and to the community.  The court therefore agreed that the appellant's drug induced psychosis was an aggravating factor and not a mitigating factor. 

139His moral culpability was greater therefore because he foresaw the likely consequences of his continued drug taking and it had an important element of deliberateness and premeditation.  I should note here that in written submissions, the defence sought to distinguish Martin on the basis primarily that it was a case about foresight of aggressiveness and violence and I do not find such an analysis helpful here.

140In Wright v The Queen [2015] VSCA 333, the offending was not the direct result of Wright's mental illness. But wholly attributable to his ceasing medication and taking methamphetamine. In this case the evidence suggests a parallel effect. The evidence further, does not in my view, suggest that your mental illness robbed you of the ability to make a rational choice to give up the medication, reduce it or supplement it with cannabis.

141On the historical medical records and some of the material from the various expert witnesses, I conclude on the required standard that you had sufficient insight from consultations and experience into what using drugs was capable of doing in terms of your behaviour and state of mind.  Some of your past admissions, when psychotic, were due to drug induced psychosis.  I accept that once in a psychotic state, your forethought and awareness of likely consequences of driving was significantly reduced and your judgment as to how to drive probably undermined.

142However, to the extent that you had reached that position by voluntary drug use, of which you had prior experience, your culpability as a result is not as lessened as it would have been, had the main and only cause for your mental state been an exacerbation of your borderline personality disorder brought about by other factors.  This cause of event is an aggravation of your culpability.  Although this aggravating feature is not conjectural, but based on some evidence, this evidence posits the link to your offending with caution, due to the complexity of properly being able to define and describe the parallel, or dual diagnosis or conclusion, made particularly by Dr Sullivan and Dr Zimmerman.

143This is a complex and difficult position.  In my view, it should entail in the most practical sense, that with the application of Verdins principles to your case, the reduction or moderation of general deterrence, specific deterrence and denunciation, while remaining applicable, is in turn diminished or rendered slightly less.

144Moderation of those principles is still operative and when coupled with your current medical and mental health state, difficult current medical scenarios which involve reduced mobility and pain, your long term good prospects of rehabilitation and family support all mean that a relatively lenient sentence is appropriate.

145I appreciate that in expressing the arguments and the findings, these matters remain complicated and perhaps difficult to understand, but although accepting the dual diagnosis or parallel track which have been expressed in this case, it is clear that I have used your foreknowledge and insight as to your drug induced psychosis in the past to diminish the moderation which I do apply in applying the Verdins principles.  That is in effect what it means.

146I do not require you to stand Ms Sanyasi. On culpable driving causing death, you are convicted and sentenced to seven years imprisonment.  Your licence is cancelled.  You are disqualified from obtaining a licence for five years.  On possess a drug of dependence, you are fined $50.  On driving an unregistered motor vehicle, you are convicted and fined $150.

147I order that you be eligible for parole after serving four and a half years imprisonment. 

148I note for the record that you have served 91 days. I declare that these were served as pre-sentence detention. 

149But for your plea, I would have sentenced you to eight and a half years, with six and a half years non-parole period.  I order that a forensic sample be taken under 464ZF, which was an order made by consent. 

150It means that a biological sample will be taken from you, for placing of your DNA on a database by a procedure which is not painful.  But if at the time that a request is made, if you do not consent to that procedure, then an authorised officer can use reasonable force to obtain a blood sample from you.  Do you understand?

151OFFENDER:  Yes, Your Honour.

152HIS HONOUR:  Yes.  Are there any other ancillary orders that are required?

153MS DUCKETT:  They're all the orders required, Your Honour.

154HIS HONOUR:  Thank you. 

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