Director of Public Prosecutions v Saubra

[2019] VCC 1043

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00962

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAJI SAUBRA

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2019
DATE OF SENTENCE:	9 July 2019
CASE MAY BE CITED AS:	DPP v Saubra
MEDIUM NEUTRAL CITATION:	[2019] VCC 1043

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Late Plea – dangerous driving causing injury – failing to stop and render assistance – theft – obtaining property by deception – significant injuries suffered by the victim – significant impact on the family of the victim – some relevant prior convictions -troubled up bringing – evidence of remorse – some admissions –general deterrence – denunciation – consideration of totality and parsimony

Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Road Safety Act 1986

Cases Cited: -

Sentence: Total Effect Sentence 4 years and 6 months imprisonment, non-parole period 2 years and 8 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Saunders	Office of Public Prosecutions
For the Accused	Ms N. Karapanagiotidis

HIS HONOUR:

1Mr Saubra, you have pleaded guilty to one count of dangerous driving causing serious injury, maximum penalty five years' imprisonment; one count of failing to stop and render assistance, maximum penalty 10 years' imprisonment and/or 1200 penalty units; one count of theft, maximum penalty 10 years' imprisonment; one count of obtaining property by deception, maximum penalty 10 years' imprisonment and one summary count of driving whilst disqualified, maximum penalty 240 penalty units or imprisonment for two years.

2The circumstances of the offending were set out in the prosecution opening, which was read on the plea this morning and I incorporate it by reference.

3Essentially the offending occurred when you had been involved in something of a tiff with the complainant, Mr Nand, after the two of you had been out to dinner at the RSL club in Frankston. You had first been to a shopping centre in Berwick and then to a Coles car park. Near the Coles car park, there was seen to be an argument between the two of you and you were driving Mr Nand’s car, even though you were disqualified from driving and you lived nearby, and you remained in the car in the driver's seat and Mr Nand was leaving from the passenger seat, he then sought to take his mobile phone with him.  Somehow you had possession of his mobile phone, in order to delete your own number from his mobile phone. There was some sort of interaction involving him trying to get his mobile phone and you trying to keep it.

4You then, in the course of this, with him somehow halfway into the car, you proceeded to start and accelerate the car away.  A loud noise was heard by a bystander and Mr Nand fell heavily from the moving car, sustaining serious injuries to his head.  You stopped the vehicle about 20 metres away, walked back and noticed him there lying on the gutter, bleeding heavily.  You did not render any assistance and you then proceeded to get in your car, drove away and then rang 000 a short time later.  There were other people in the vicinity, they also rang 000 and found that an ambulance was on the way. Mr Nand was assisted and taken to hospital.  So those events constitutes Charges 1 and 2.

5Subsequently, his car was found in the Crown Casino car park a few days later.  When you drove away in the car you also had his phone and his wallet, including his credit cards.  A couple of days later those credit cards were being used at a number of places in the south-eastern suburbs of Melbourne, in Moorabbin, and that use of the credit cards constitutes obtaining property by deception, Charge 4, and the theft of the car, the wallet and the iPhone constitute Charge 3.  As I have said, you had been disqualified from driving and that was the uplifted summary charge.

6You were arrested about a week later and in a record of interview basically made full admissions as to the events because it appears you were the only eye witness to the events and you said that you did not push Mr Nand out of the car and you thought he was holding the door or something and you accelerated and he fell.  You said he did not get hit by the car and when asked what made you decide you said, 'Well I was in the car, I don't know what he was touching', and you gave various explanations and accepted in that interview full responsibility for the conduct.

7You were arrested on 26 October and you have been in custody ever since that time.  The matter was listed for trial in 4 March.  There had been a committal earlier on 19 February and 6 March. There were submissions on 7 May. You were committed for trial. A couple of days before the trial there was advice to the prosecution that you would plead guilty.  There were some negotiations as to what charge it was and the matter was adjourned until today for the plea.

Assessing the seriousness of the offending.

8It is first necessary to ascertain your moral culpability for the offence of dangerous driving causing serious injury.

9As the learned Crown prosecutor submitted, to accelerate a vehicle when a person is not properly secured is an inherently dangerous act.  Here you and the complainant had been in something of a tiff over the possession of his mobile phone, and him deleting your name from it.  You sought to end the matter by accelerating off in the vehicle, irrespective of the complainant’s personal safety.  This led to a catastrophic injury to the complainant.  While there was no premeditation to your offence, it was a calculated act for you to end the dispute by starting the car and driving off.  This puts your culpability for the offence in the mid-range.

10Next, the impact on the complainant was severe as set out in the medical reports and in the victim impact statement, to which I will come.  This means that overall your offending in relation to the offence of dangerous driving causing serious injury, must be seen as at least in the mid-range of seriousness.

11Turning to the charge of failing to stop and render assistance, the fact that you were disqualified from driving at the time is relevant to your culpability.  This offence is designed to ensure that those who are involved in accidents where serious injuries occur, will fulfil their moral duty by remaining at the scene, accepting responsibility, including where necessary being breathalysed and rendering whatever assistance they may be able to provide.

12Notwithstanding, that you must have been aware that the complainant had suffered a serious injury, given that you called 000 and told the 000 operator, 'a guy passed out,' you chose to get back in your car and leave.  This was a gross abdication of your responsibility to the complainant and to the community.

13Notwithstanding that you did ring 000, I regard your failure to stop and render assistance as a serious example of what is a prevalent offence.

14The other offences of which you have pleaded guilty are of lesser seriousness.  In relation to the theft of the vehicle, you have prior convictions for theft of a vehicle and you chose to drive away in the complainant's vehicle. You failed to give any satisfactory explanation as to why it ended up at Crown Casino.  You retained his phone and wallet and credit cards, and apparently advised the police that you threw the phone away.  You then proceeded the following day to use the credit card for a number of transactions.

15The final charge is the summary charge of driving whilst disqualified.  Again, there was no justification offered for your conduct and you have one prior conviction for driving while suspended.

Victim Impact Statement

16As indicated in the Crown opening, the complainant suffered severe injuries as a result of your conduct.  It was not disputed that there were serious injuries as defined under the Act and the medical reports in the brief indicated that the complainant was admitted to hospital on 8 November 2017. He was then placed in an induced coma, and he had post-traumatic amnesia for more than three months.  He continues, as at the Report stamped 20 March 2018 notes, to be having multidisciplinary rehabilitation. The duration of his PTA indicates that he has a traumatic brain injury and it is described as extremely severe.

17He will require a minimum of one person to assist him throughout a 24 hour period, although he is now becoming a bit more independent.  He required a number of surgeries and various other feeding assistance, but the opinion in the Report indicates that the impact will be lifelong and very severe. He was a gentlemen born in 1969, so he is now 50.  Therefore, for the balance of his life, which he has probably got a life expectancy of 30 or 40 more years, he is going to require lifelong attendant care.

18The report also notes that he remains vulnerable to mental health issues, including seizures and headaches and he will require follow-up and will need a 24 hour carer and that is what he is currently getting.  And it remains unclear whether he will be able to live in his own home but it indicates that it appears that his daughter is now looking after him at home.

19There is a further report, again from Dr Schreiber, which I incorporate by reference, indicates the severity of the injuries; including the various brain bleeds, and the various surgeries that were required. This included the fractures that had to be repaired, and the plates that had to be inserted.  The opinion was that there had been blunt and friction trauma to the head and limbs and that this had an accumulative effect.

20So the impact is serious and the injuries that he had suffered were severe. That is also evidenced by the victim impact statement, to which I now turn.

21In the victim impact statement from the complainant's daughter[1], which was read in court by the prosecutor, she indicates that she was looking forward to a life with her father, who she regarded as her best friend, who was giving her unconditional love.  She had been planning on her future, going to university, getting married and him being with her in her future life, including playing with possible grandchildren.  He would assist her on the weekend, he was a present, active father.

[1] Exhibit B on the plea.

22Now she is in a position where she is looking after him.  She has become the fulltime carer of her father who now has no recollection as to who he is. She says,

'It's bizarre for me to imagine a life where I didn't get panic attacks on a regular basis and she can't go to bed without getting flashbacks'.

23So her life has been blighted and she makes that clear in the victim impact statement.  She says,

'Thinking about my future used to excite me because my future was so bright, filled with endless possibilities'.

24But now it causes her doubt and anxiety.  She indicates that she feels that she battles with herself mentally with flashbacks and her friends used to describe her as a person full of life,

'But I'm a completely different person this day, the only thing that gives me hope is watching her dad as he fight to have his life back'.

25Seeing her father fight daily makes her become stronger.

26That is a firsthand indication of the impact of your offending on the complainant through his daughter and no doubt it has had an impact on his wife as well, let alone the loss of his opportunity to be a part of a productive member of our society.

27So I have considered this moving victim impact statement and I must take it into account.  I note for the purposes of the complainant and his daughter that unfortunately nothing the Court can do will restore the complainant to his former position. However, the impact on the complainant, his family, and the loss of a productive member of the community is a matter that I must take into account in sentencing and I commend the complainant's daughter for her selfless conduct for her father as is evidenced in this victim impact statement.

Prior convictions.

28You are a 31-year-old and you have admitted a significant criminal record, going back to when you just under the age of 20.  That criminal record commences in 2007 when you were put on a Community Corrections Order for recklessly causing injury, throwing a missile and intentionally damaging property.  You failed to comply with that order and you were brought back before the Dandenong Magistrates' Court on 22 January 2009 for breach of that order, as well as for a number of other offences including assault in company, throwing a missile, theft from a shop, theft, robbery, aggravated burglary, three counts of theft of a motor vehicle, obtaining property, possessing a controlled weapon, burglary and then some other driving offences and also some possession of amphetamine, cannabis, using cannabis, failing to answer bail charges.  For all those offences you were sentenced to a period of 12 months' imprisonment as an aggregate sentence.

29And then on 9 July 2009 you were before the courts again for theft from a shop, handling stolen goods, reckless conduct endangering life, failing to stop a motor vehicle on request, learner driver failing to have a permit and being a driver without L plates displayed.  For the criminal offences you were sentenced to 70 days' imprisonment.

30On 31 January 2013, for the offence of damaging property, you were fined $3,000. Then on 31 January 2013 for the offence unlawful assault and entering a private place without excuse, you received a $3,000 fine.  23 April 2014, driving with authorisation suspended, $2,000 fine and suspended for driving for three months and there are some speeding fines as well.  9 October 2014, robbery, two counts, three months' sentence, aggregate.  30 March 2015, possessing a prohibited weapon, aggravated burglary, theft, 172 days aggregate sentence.  That was declared as served and you received a Community Corrections Order for a period of 12 months with 200 hours community work.  10 June 2015, theft, another community corrections order for three months.  6 April 2016, contravening the Community Corrections Order, that was found proven.  On the same date you were resentenced to six months' imprisonment for the offences and then you were also dealt with for a number of other offences, including theft of a motor vehicle, possessing a controlled weapon, receiving stolen goods, committing an offence on bail, failing to answer bail, failing to stop a vehicle on police direction, possessing methylamphetamine, cannabis and testosterone. 

31Your final appearance was on the 22nd of December 2016 and you received a nine months sentence as an aggregate for all that offending.  This included two charges of burglary, two counts of shop theft, three counts of theft, committing an indictable offence on bail and two counts of theft of a motor vehicle.  You were sentenced to six months' imprisonment, current with the sentence that you were undertaking and you were released from prison in June 2017 and then committed this offence in October 2017.

32As your counsel submitted there are a number of periods where you were not committing offences. The record shows however that you have been involved in serious offences for which you have been sentenced to a number of Community Corrections Orders, which you have then contravened, as well as a number of prison terms, the longest term being a sentence of nine months' imprisonment for two counts of theft of a motor vehicle on 6 April 2016.

33You have a number of prior convictions for theft of a motor vehicle as well as for other dishonesty offences.  I noted the prosecution chronology indicates you had only been released from custody for about four months prior to committing these offences.  I accept, however, that save for the theft of the motor vehicle you have relatively limited prior traffic type convictions.

Matters in mitigation

34Your counsel put forward a number of matters in mitigation.  First she submitted that you have pleaded guilty. You are to be given credit for your plea of guilty as it has facilitated the course of justice and you have accepted responsibility for your conduct.

35The plea is also significant, in that in the record of interview you did make fairly full admissions as to the actual events.  This is significant given that the complainant is not in a position to provide evidence as to the circumstances of the event.

36Your counsel is also submitted that the plea of guilty was evidence of remorse and there is evidence of remorse in the record of interview by you saying, 'I take full responsibility', and in the report of Ms Lechner, psychologist.  I accept the submission that there is evidence of remorse by way of admissions in the record of interview and in the report of Ms Lechner.

37The evidence of remorse, however, is somewhat tempered by the late plea in this matter.  The matter was listed for trial and the plea was only entered shortly prior to the trial date.  You are, however, entitled to benefit of the plea notwithstanding that it was late.

Personal Circumstances

38Your personal circumstances were set out on the plea and are also set out in the report of Ms Lechner.[2]

[2] Exhibit 2 on the plea

39You are now aged 31.  As submitted by your counsel you had a somewhat dysfunctional upbringing, having been born in Lebanon and brought to Australia by your father at the age of four, along with your stepmother over the opposition of your natural mother.  You thus have a troubled relationship with your father and unsurprisingly your early history was classified as consisting of complex developmental trauma by Ms Lechner. This has led to the use of drugs, including cocaine.  Further, she has indicated, you have been subject to difficult family circumstances and have suffered emotional dysregulation, poor social relationships and chronically low self-esteem.  Notwithstanding this you were able to obtain your VCE and have been working as a renderer for a person described as somewhat of a father figure.  This is when in recent times you have not been incarcerated and this employment is available to you upon your release.

40Ms Lechner found that you were of average or low intelligence and that you have a capacity to engage in consequential and reflective thinking. However, your past drug use has often clouded your judgement and decision making.  She found that you have moderate depression but minimal anxiety.

41She is of the view that psychotherapy would assist you in developing strategies to cope with your complex past history.  She is also of the view that your relationship with Ms Stanton will assist you.  I have noted you have strong support from her, set out in a reference that she has provided, and also from her mother. Those two have indicated that they are prepared to provide you with accommodation upon your release. They also indicate that they have a very high regard for you and Ms Stanton has been in a relationship with you for the 12 months, she has known you for a period of some four years.

42Ms Lechner notes that when you were last released from prison you obtained employment and moved into a group house but after some time you relapsed into previous bad company and the use of drugs. She is of the opinion that you would benefit from therapeutic support upon your release into the community.

43I have taken into account her report.

Prospects of Rehabilitation

44As I have noted you have in the last five years been released from custody, placed on a Community Corrections Order, and then breached that order and then been sentenced again.  As I have indicated you had only been released from prison for a period of four months when this offending occurs.  This record would indicate that your prospects of rehabilitation at this stage are at their highest reasonable.  In your favour this is the longest term of imprisonment that you have undertaken and you have never been given a parole sentence.  Further your post release needs have been identified by Ms Lackner and you have the support of Ms Stanton and her mother.  In addition you have a capacity for employment.  Ultimately your prospects of rehabilitation will depend on your ability not to use drugs, even though this offending does not appear to have been drug-related.

45Further, this is the most serious driving related offending that you have been involved in. You do have a prior convictions including failing to stop a vehicle on a police direction in 2016, starting a false name and address in 2014, and a further charge of failing to stop a vehicle on request in 2009.  You also have a number of prior convictions for failing to answer bail.

46While you have been on remand you have, on the instructions of your counsel, been drug-free and also have been involved in mentoring other prisoners as well as having engaged in some treatment programs.  Unsurprisingly, the programs available to you have been relatively limited, given your remand status.

Purposes of Sentencing

47The basic purposes for which this Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interest of the community and seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

48In this case your counsel submitted that the relevant sentencing ends could be achieved by a sentence that involved your imminent release.  The learned Crown prosecutor submitted however that the offending here was serious and that a head sentence and a non-parole period should be imposed.

49Neither counsel were of any assistance with comparable cases.

50I have indicated earlier that I regard the offence of dangerous driving causing serious injury here as in the mid-range of seriousness.  It carries a maximum penalty of five years imprisonment, to which I must have regard.  It can be committed in a wide range of circumstances in relation to the dangerousness of the driving, and the extent of the serious injury.  Here as I have indicated from the medical reports the injuries are catastrophic, and the level of moral culpability in the driving is at least in the mid-range.

51The only possible prior conviction of similar offending is a conviction for reckless conduct endangering life in 2009, which the learned crown prosecutor accepted was of some antiquity.  I give it little weight.

52In relation to the offence of failing to stop and render assistance, this also can be committed in a wide range of circumstances.  However it is essentially an offence of objective seriousness given the underlying obligation of all drivers to accept responsibility for their conduct when as a result of their driving an accident occurs and a serious injury is inflicted.  The maximum penalty was increased some years ago by Parliament from two years to 10 years, indicating the seriousness with which this offence is treated.  The fact that you were disqualified from driving is an aggravating feature here.

53The offence of the theft of a motor vehicle and the wallet holding credit cards, and the offence of obtaining property by deception, are both of some seriousness given you have a number of prior convictions for theft of a motor vehicle and other dishonesty offences.

54You also have a prior conviction for driving while authorisation suspended.

55In relation to the two most serious offences it is appropriate that there be some cumulation between the sentences imposed. Although they arise out of the one incident, they are distinct forms of criminality.

56In sentencing you I must also take into account considerations of totality and parsimony.

57In sentencing for the offence of dangerous driving causing serious injury considerations of general deterrence and denunciation are very important.  The sentences of the Court must send a signal to all drivers particularly those whose driving falls below the objective standards required of all drivers, causing catastrophic injuries. Then the sentence must send a deterrent message to all drivers.  It must also seek as much is possible to vindicate the interests of the complainant and reflect the damage that has occurred.

58General deterrence and denunciation are also relevant to the second count.  All road users must accept responsibility for their conduct.  An aggravating feature in your case, notwithstanding you called 000, is that you were disqualified from driving at the time.  Your conduct in failing to accept responsibility at the scene when it was obvious that the complainant was seriously injured must be utterly denounced.

59Specific deterrence has some relevance in relation to counts three and four given your prior convictions.

60It is also in the community interest that offenders be rehabilitated into the community.  You have been the subject of prior sentences of imprisonment but not a parole sentence.  It is in the interests of the community that you are rehabilitated and did you do not relapse into drug using and offending, which unfortunately you have done in the recent past following release from a term of imprisonment.

61All these matters that I have surveyed are in a sense incommensurables and I need to synthesise them into a proper sentence.  I have taken into account all the matters put on your behalf by your counsel and I sentence you as follows.

62Could you please stand.

63On the charge of dangerous driving causing serious injury, you are sentenced to three years' imprisonment; on the charge of failing to stop and render assistance, you are sentenced to three years' imprisonment; on the charge of theft, you are sentenced to six months' imprisonment; on the charge of obtaining property by deception, you are sentenced to three months' imprisonment; on the charge of driving whilst disqualified, you are sentenced to one months' imprisonment.

64Count 1 is the base sentence and I order that 15 months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1 and three months of the sentence on Charge 3 be served cumulatively on the sentence on the 15 months and on the sentence on Charge 3; making a total effective sentence of four years and six months' imprisonment.

65I order that you serve a minimum term of two years and eight months' imprisonment before being eligible for parole.

66I order that you be disqualified from driving for a period of two years.  All licences to be cancelled and you be disqualified from driving for a period of two years on Count 1.

67I declare that had you not pleaded guilty I would have imposed a total effective sentence of five years and six months, with a non-parole period of three years and seven months.

68HIS HONOUR:  I declare 621 days pre-sentence detention.

69HIS HONOUR:  On the charge of driving whilst disqualified your licences are cancelled and you’re disqualified from driving for a period of
12 months from today.

70HIS HONOUR:  I have made the disposal order sought by the prosecution.

71HIS HONOUR:  I thank counsel for their assistance in this matter, both counsel, and adjourn until 9.30 tomorrow morning.

72MR SAUNDERS:  Thank you.

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