Director of Public Prosecutions v Singh

[2024] VCC 1106

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CR-24-00218
Indictment No. P12378838

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANMOLDEEP SINGH

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	16 July 2024
DATE OF SENTENCE:	25 July 2024
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2024] VCC 1106

REASONS FOR SENTENCE
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Subject:One charge of driving in a manner dangerous causing death, one charge driving in a manner dangerous causing serious injury

Catchwords:              twenty-four year old offender – Uber driver with two passengers – failed to stop at stop sign at intersection in circumstances where there were many warning signs of obligation to stop leading up to the intersection – collision with car entering intersection causing the death of one of its passengers and serious injury to another passenger - no prior criminal history – good history of study and work since arriving in Australia in 2018 – risk of deportation

Legislation Cited:      Sentencing Act 1991, Crimes Act 1958, Road Safety Act 1986.

Cases Cited:Markovic v the Queen [2010] VSCA 105

Sentence:                  Total Effective Sentence of 3 years 3 months’ imprisonment and a non-parole period of 2 ½ years.
s6AAA: TES 5 and a half years imprisonment with a non-parole period of 3 and a half years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Fisher	Solicitor for the Office of Public Prosecutions
For the Offender	Mr C Oldham	Vermon Da Gama & Associates

HER HONOUR:

1Anmoldeep Singh, you have pleaded guilty to one charge of driving in a manner dangerous causing death, which carries a maximum penalty of ten years’ imprisonment, and one charge of driving in a manner dangerous causing serious injury, which carries a maximum penalty of five years’ imprisonment.

2The factual circumstances giving rise to your offending are detailed in the Summary of Prosecution Opening.[1] 

[1]Exhibit “A”

3The offending occurred at approximately 3.55pm on 11 February 2022 at the intersection of Wellington and Clegg Roads, Wandin North.  At the time, you were driving in your capacity as an Uber driver and had two passengers in the rear seat of your car, as you travelled south on Wellington Road towards the intersection with Clegg Road.  You entered that intersection travelling at a speed of 42 to 44 kilometres per hour, after having failed to stop at a stop sign applicable to you.  You collided with a car driven by Ms Jorga O’Connor, which was travelling west at a speed of 52 to 57 kilometres per hour, as it entered the intersection from your left-hand side.  Her grandfather, Mr Lewis Carnegie, was seated in the front passenger seat, and her great uncle, Mr Peter Carnegie, was seated in the rear passenger seat.  The collision caused Ms O’Connor’s car to rotate and roll onto its roof and to hit an embankment.  Your vehicle came to a stop on the southwestern corner of the intersection.

4Mr Lewis Carnegie suffered a crush injury to his pelvis and significant soft-tissue trauma.  He died at The Royal Melbourne Hospital from his injuries approximately two hours after the collision.  Mr Peter Carnegie received lacerations to his head and neck and damage to multiple bones, including an undisplaced fracture of the C7 vertebra, fractures of multiple ribs and a fractured clavicle.  His right neck lacerations required repair by plastic surgery.  He suffered hypovolaemic shock, which required intravenous fluid replacement and transfusion of two units of blood, without which he was at risk of worsening shock and possible death.  When he was discharged from hospital ten days after the collision, he was still suffering post-traumatic amnesia and his fractured clavicle was immobilised in a soft collar and sling.

5The speed limit for both Wellington and Clegg Roads was 60 kilometres per hour.  Both roads were in good condition and it was a clear, sunny day, with good visibility and light traffic.

6Prior to your entry into the intersection, there were many warning signs and road markings to alert a driver travelling in your direction about the need to stop at the intersection ahead.  Those signs and markings were as follows:

(a)   At a distance in excess of 160 metres before the intersection was a sign with images, warning drivers that people, horses and cyclists may be in the vicinity.  Photographs taken by police after the collision were tendered as Exhibit “B”.  In photograph 1, taken 160 metres before the intersection, this sign is not visible, as it is behind the photographer.  However, one can see a visible track on either side of the road, with a portion of a cyclist and his bike on the right-hand side of the photograph.

(b)   At a distance of 134 metres before the intersection, on each side of the road were yellow diamond shaped signs bearing the words “RUMBLE STRIPS” in black lettering.  On the side of the road upon which you were driving, this sign is just before the path for walkers, horse-riders and cyclists, as depicted in photograph 1 of Exhibit “B”.

(c)   At a distance of 111 metres before the intersection, just as the road curves slightly to the left, is the first set of three rumble strips, which comprise thirteen raised white horizontal markings across the whole of the side of the road on which you were travelling.  These are designed to create vibration when travelled over by a vehicle in order to alert drivers to slow down.  These are depicted in photographs 1, 3 and 4 of Exhibit “B”.

(d)   At a distance of 85 metres before the intersection, on either side of the road, were signs clearly indicating to drivers that they should prepare to stop.  These signs comprised a yellow diamond, within which was a red hexagonal image (the same shape as a stop sign) and, above which was a black arrow pointing ahead.  Underneath the diamond sign was a separate red rectangular sign with the words “PREPARE TO STOP” in white lettering; These signs are depicted in photographs 1, 3, 4, 5 and 6 of Exhibit “B”;

(e)   At a distance of 75 metres before the intersection was the second set of rumble strips, which are depicted in photographs 7 and 8 of Exhibit “B”;

(f)    At a distance of 42 metres before the intersection was the third set of rumble strips, which are depicted in photographs 4, 5, 7, 8 and 9 of Exhibit “B”;

(g)   At a distance of  6.7 metres before the intersection, on either side of the road, was a visible stop sign comprising a red hexagon on which “STOP” is written in white lettering; These signs are depicted in photographs 5, 7, 8, 9 and 10 of Exhibit “B”;

(h)   At the commencement of the intersection with Clegg Road was a solid white line indicating that drivers must stop. This is depicted in photograph 10 of Exhibit “B”.

7Tendered by the prosecution at the plea hearing was dashcam footage from a vehicle which was travelling west on Clegg Road. That vehicle was the second of two vehicles travelling behind Ms O’Connor’s car.[2]  The footage shows that, as that vehicle approaches the intersection, the stop signs applicable to vehicles travelling on Wellington Road on either side of Clegg Road are visible.  The footage captures the collision. It shows your car entering the intersection without stopping, or apparent braking.  It also shows that the weather is fine and visibility is good. Also, a witness, Ms Ruby Fergerson-Mayer, who was the driver of a car which was stationary at the stop sign across the intersection on the other side of Wellington Road from you, saw your car enter the intersection and fail to stop.[3]

[2]Exhibit “C(c)”

[3]        Exhibit “A”, Paragraph 14

8The prosecution also tendered dashcam drive-through footage taken by police after the collision, which shows the portion of Wellington Road upon which you had travelled south leading up to the collision site. [4]  It shows a semi-rural area, with trees and other foliage on either side of the road. As a driver approaches the intersection, there is a view to the east and west of Clegg Road of only a couple of metres. Trees obscure any further vision of Clegg Road, but all of the signs and road markings which I have mentioned are readily visible, with the exception of the stop sign on your side of the road, which is partially obscured by foliage until one passes the second set of rumble strips. It becomes fully visible by the time one is approximately 42 meters from the intersection.[5] However, the stop sign on the right hand side of the road is fully visible from at least 146 meters prior to the intersection, as is the existence of the actual intersection.[6]

[4]Exhibit “C(a)”

[5]See also photograph 9 of Exhibit “B”

[6]See also paragraph 3 of Exhibit “B”

9Dashcam drive-through footage taken by police after the collision of the portion of Clegg Road upon which Ms O’Connor had travelled west leading up to the collision site was tendered.[7]  This shows that Ms O’Connor would have had no view of you approaching the intersection, however, the presence of stop signs applicable for drivers on Wellington Road on either side of Clegg Road is clearly visible.

[7]Exhibit “C(b)”

10Your backseat passengers were Ms Jessica Henning and Mr Justin King.  You had collected them at 3pm in Eltham in order to drive them to a wedding in Wandin North.  During the drive, you asked them whether they minded if you used your mobile phone, to which they consented.  You used your mobile phone, which was on the dashboard, through your Air Pods.  The prosecutor, Mr Fisher, was unable to say at what stage prior to the collision this occurred, but did state that there was no evidence that you were talking on your mobile phone through your Air Pods at the time of entering the intersection.  Your own counsel, Mr Oldham, did not address the court as to when this conversation took place or the nature of its contents or any impact it may have had upon your concentration.

11In a statement to police following the collision, Mr King stated that he knew there were rumble strips on the road because he could feel them in the car, but he was not really paying much attention until he noticed Ms Henning’s hand move from the centre console to out in front of her, as though she was about to walk into a wall and protect herself with her hand.  He looked up and saw the stop sign as your car was going slightly up a hill towards the intersection.  He recalled the stop sign being larger than it needed to be and obvious, but conceded that that might have been because he was next to it and it looked like a double size red and white stop sign.  He expected your car to slow down, but it did not, and he then looked over to the left and saw a flash of another car.[8] 

[8]Exhibit “G”

12Ms Henning, in her statement to police made following the collision, stated that, as the car approached the intersection with Clegg Road, she looked up and it looked like you were not going to stop.  She put her hand up in front of her with a flat palm, and she and Mr King just looked at each other, and then it was too late.  She stated that she saw the stop sign, but you did not stop and drove straight through the intersection and collided with a car.[9]

[9]Part of exhibit “G”

13After the collision, your car came to a stop on the south-western corner of the intersection.  There were no tyre marks to suggest that either your car or Ms O’Connor’s car had engaged in emergency braking prior to the collision.[10]  Mr King stated that you got out and sat near the front of your car in a daze and asked, “What happened?”. He responded, “Man, you went through the stop sign” and you said “Really?”  He stated that you were just dumbfounded.[11]  Ms Henning stated that you were beside your car saying that you were sorry and asking whether it was your fault, and she and Mr King told you that you were supposed to stop at the stop sign.[12]

[10]Paragraph 21 of exhibit “A”

[11]Part of exhibit “G”

[12]Part of exhibit “G”

14When police interviewed you at the scene, you claimed that you had seen the stop sign, but did not fully stop. You stated that you did not notice the car with which you collided and drove straight ahead.[13]  When you were formally interviewed by police on 27 February 2023, you stated that you had been an Uber driver for about four years, but you were not familiar with the road and used navigation.  You insisted that you stopped before the intersection at the stop sign. You claimed that you looked over to your right and then over to your left and again to your right, and it was clear.  You stated that you then started your car and the other car hit your car on the lefthand side.  You claimed that you had observed the stop sign and “maybe” observed a “prepare to stop” sign, and “thought you remembered” the noise from the rumble strips.[14]

[13]Paragraph 25 of Exhibit “A”

[14]Paragraph 27 of Exhibit “A”

15There is no doubt on all the evidence that you did not stop at the stop sign.  There is evidence that your speed reduced slightly as you approached the intersection. Data obtained from the Uber data terminal in your car showed speeds of 55.6 kilometres per hour, 55 kilometres per hour, 51.9 kilometres per hour, 48.4 kilometres per hour and 46 kilometres per hour leading up to you entering the intersection.[15]  It is unclear whether you consciously decelerated or this was simply consistent with you travelling up an incline leading to the intersection.  In any event, the evidence points to you failing to pay heed to the multiple signs and markings on the road which were warning you about the need to pay attention to other potential road users and the need to stop at the intersection ahead, as well as designed to alert you to be conscious of your speed. As you neared the intersection, apart from the fact that you were very obviously facing a stop sign, there was another vehicle which had stopped on the opposite side of Wellington Road to give way to cars on Clegg Road. Had you been keeping a proper lookout, this should have been readily visible to you.  I am satisfied beyond reasonable doubt that you simply did not look or pay attention as you entered that intersection because Ms O’Connor’s car was plainly travelling from your left to enter the intersection immediately before the collision. 

[15]Exhibit “C(d)”

16Mr Oldham submitted on your behalf that this collision occurred because of “momentary inattention” on your part. I reject that submission in the light of all the surrounding circumstances to which I have referred. In my view, there is simply no explanation for why this collision occurred other than you not paying attention to the signs and road markings leading up to the intersection and failing to concentrate and keep a proper look out as you approached and entered the intersection.  You told police that were not familiar with the road. I here interpolate that this is at odds with what you told your treating psychologist, Ms da Gama Montero, namely, “I heard many times from other people about that dangerous intersection and several accidents that occurred there but never thought one day I would be one of them”.[16] You told police that you were using navigation and were only two minutes away from your passenger’s destination. If by this you meant to indicate that you were focused upon some navigational aid, rather than the physical circumstances of the road upon which you were driving, that could never be a mitigating factor. Lack of familiarity with a road is all the more reason to be careful, particularly in the light of the clear warning signs.  In all of the circumstances, this is a relatively serious example of dangerous driving and your moral culpability is high.  As I commented at the plea hearing, I have not encountered an intersection where there were so many advance warning signs of the need to be cautious and the need to stop at the intersection which you were approaching.

[16]Exhibit “1” p.4

17You are presently aged 25 years, having been born in January 1999.  You come before the Court with no prior criminal history.

18In a plea on your behalf, Mr Oldham, tendered a report, of a psychological assessment dated 27 June 2024 authored by Ms Hyacinth da Gama Montero, to whom I have just referred.[17]  I raised with Mr Oldham that the report did not appear to acknowledge or be in compliance with the Expert Witness Code of Conduct forming part of the Practice Note for the Criminal Division of the County Court, Mr Oldham conceded that the author had not read the Practice Note. 

[17]Exhibit “1”

19I indicated that I had concerns about the content of her report which included comments on matters outside her area of expertise, including the alleged dangerous nature of the intersection. Also, it provided diagnoses for no less than nine psychological conditions based on your self-report, but did not give content to specific symptoms relating to these diagnoses, particularly those alleged to be associated with Post-Traumatic Stress Disorder. Further, significant parts of the report were based on generic descriptions of disorders. The author ultimately arrived at a conclusion which appeared to traverse your pleas of guilty. She opined that, at the time of the collision, you were unable to control your conduct as your decision-making functioning located in your brain was adversely affected by stress hormones. 

20It became apparent that the author of the report is the sister of the solicitor whom you engaged to represent you and who was the instructing solicitor to your counsel, Mr Oldham.  I expressed my concern about the propriety of this situation and that the tenor of the report seemed adversarial, rather than an impartial, independent report from an expert witness.  Your counsel sought instructions and ultimately stated that he did not “rely” upon the report, except for select portions, namely, details as to your background, the fact that you had expressed remorse to the author for your offending, and that you had sought counselling from her for depression and anxiety following the collision.  I here interpolate that if a report is tendered, it is inappropriate to simply say that one relies on some parts and not others.  This is an entirely unsatisfactory and unprofessional situation.

21You were born in Punjab, India, and are the only son of your parents.  You apparently lived in a middle class extended family with paternal uncles and aunts.  In 2013, one of your uncles died, and your father left India to work for a construction company in Dubai in order to better support the extended family and pay for your tuition at a private convent school, Delhi International Public School.  Sadly, your father had a heart attack and died in Dubai on 7 February 2015, just shortly after you had turned 16 years.  Your family apparently struggled financially after your father’s death and you were transferred to a less expensive school to complete your senior secondary schooling.  The family suffered a further blow in 2017 when your grandfather, to whom you were close, died.  You apparently did well at school and passed the requisite English exam to be able to study in Australia and obtained a study visa for Australia. 

22You arrived in Melbourne on 1 November 2018, whilst still aged 19 years. You commenced studying for an Advanced Diploma of Building Design at Oceania Polytechnic Institute, which is a private institute designed to specifically accommodate overseas students wishing to study in Australia.  You completed that three year course and attained the Advanced Diploma in November 2021. You then commenced a two year Certificate IV in Engineering at Sheila Baxter Training Centre Pty Ltd (another private educational institution for overseas students wishing to study in Australia, which has since changed its name to Baxter Institute).  Your counsel stated that this course involved mechanically based engineering and welding, fabrication, casting and moulding, and that you completed this qualification at the end of 2023.  You then enrolled in a Diploma of Mechanical Engineering at Baxter Institute and applied for a graduate visa to enable you to continue such study.

23Mr Oldham stated that a student visa entitled you to work for 20 hours per fortnight whilst undertaking courses of study, but, during holiday periods or intervals between courses, you are entitled to work 40 hours per week.  In 2018, you started to do work for Uber Eats and, in June 2021, you began to work as an Uber driver. At this time,  you had upgraded your car from an old Toyota Camry to the Corolla vehicle which you were driving at the time of the collision. Your vehicle was written off in the collision.

24Mr Oldham initially submitted that the court should take into account as a mitigating factor that you financially support your mother, who is 52 years old.  He stated that she is your only relative and she lives alone in India in a dwelling on agricultural land owned by a family trust.  He stated that “for cultural reasons” (which were never expanded upon) you mother has never worked.  Mr Oldham told the Court that, whilst in Australia, you had sent money to support your mother, whom he claimed received an income of only approximately $400 (AUD) per annum, together with some of the produce grown on the farming property. 

25Mr Oldham was very vague about the details of your financial support to her.  No documents were provided as evidence of your income or of what amounts were sent by you to her or at what intervals.  It subsequently emerged that some form of mortgage loan in the sum of $20,000 had been taken out on the family property in India in order to finance the fees for the educational courses which you have been undertaking here in Australia.  Mr Oldham told the Court that, at the time of the collision, you were earning $2,800 per month from working as a security guard and from Uber driving.  From this amount, each month you would pay $1,000 for rent, $1,000 to repay the mortgage loan in India, $1,000 towards your mother’s upkeep and $850 for personal expenses.  I must confess to having some difficulty following Mr Oldham’s submission on family hardship.  On the figures supplied to the court, your alleged expenditure exceeded your alleged income. Further, Mr Oldham was unable to say what expenses you incurred in relation to your employment as an Uber Driver.  Mr Oldham ultimately abandoned the submission in relation to family hardship, recognising that it is extremely difficult to satisfy the Court as to exceptional circumstances in accordance with Markovic v The Queen.[18]  Nevertheless, he asked the Court to take into account that you and your mother are very close. Although you had only told her about these criminal proceedings very recently, she very promptly flew to Australia on a three month tourist visa, with a ticket purchased by you. She was in Court to support you.  He stated that there is some form of dispute over entitlement to the family agricultural property on which she lives and, due to this dispute, your mother has nothing to do with what few other relatives she still has alive.

[18][2010] VSCA 105

26I pointed out to the prosecutor, Mr Fisher, that there had been delay in this matter in that you were not charged with this offending until 9 November 2023, some nine months after the collision. Mr Fisher responded that there had been several changes to the informant appointed, which had slowed the process of the investigation. The time that has elapsed, between November 2023 and the date of the plea hearing on 15 and 16 July 2024 is not inordinate.  However, I accept that you have had this matter hanging over your head causing you to suffer guilt, stress, depression and anxiety for which you have sought counselling from Ms da Gama. You attended six sessions with her between 24 February and 28 July 2023, and a further four sessions between 14 August 2023 and 27 March 2024. Mr Oldham did not rely upon your alleged suffering during the Covid-19 pandemic or the deaths of your father or grandmother or “cumulative lifetime history of traumatic events” including (unspecified) experiences of childhood, upon which Ms da Gama Montero focused in her report.

27Mr Oldham stated that, since arriving in Australia in 2018, apart from diligently pursuing your studies, you have also undertaken regular work within the limits permitted by a student visa.  Over a period of some two years, from November 2018 until November 2020, you were employed by “5AB Tiling”.  An undated reference from Mr Subeg Singh, your employer at this business, was tendered at the plea hearing.[19]  The author stated that he had the highest regard for you and that you had been an ideal employee, who was hardworking, well behaved and disciplined. 

[19]Exhibit “2(iv)”

28Mr Oldham stated that, approximately two years ago, you began to work as a security guard employed by Force Response Security.  This involved taking a security role at various events held at different venues, such as sporting venues.  He stated that you would work to the maximum number of hours permitted by your student visa and, if there was insufficient security work, you would top it up with Uber driving work.  Apparently, the security work was ongoing until you were remanded in custody 9 days ago.  An undated reference from Mr Vik Batth, Chief Executive Officer of Force Response Security, stated that you had been employed for the past three years (albeit that your counsel said that he believed it should read two years).  Mr Batth stated that you had shown exceptional professionalism, dedication and a strong worth ethic.  He noted your reliability, attention to detail and an ability to handle challenging situations because you have excellent communication skills and a calm demeanour in a high pressure environment.  He said this made you an asset to their team, and you had always conducted yourself with integrity, honesty, a positive attitude and a willingness to learn.  These features and your collaborative nature had earned you the respect of colleagues and supervisors.  He stated that his company was keen to extend an offer of a management position to you.  He also stated he was aware that this offending had caused significant emotional and physical impact upon you and had necessitated you taking time off work to cope with the tragedy.  He expressed the belief that you had shown sincere remorse for what you had done.[20]

[20]Exhibit “2(v)”

29Mr Oldham told the Court that you were a respected member of the Sikh community in Melbourne and practised your faith at Gurduara Miri Piri, which is a Sikh temple and welfare and cultural association in Deanside, Victoria.  Many members of the Sikh community were in Court to support you and, also, there were multiple references from members of the Sikh community. 

30A joint reference from Rabi Inder Singh Grewal and Randhia Singh, administrators of Gurduara Miri Piri, stated that you have been an active participant in the religious and community activities there since 2019 and are well regarded for your respectful behaviour, dedication to community service and strong moral character.  You have volunteered there on weekends and, occasionally, on weekdays, contributing eight or nine hours by serving food, washing dishes and helping elderly members of the community, some of whom you drive to and from the temple. Other referees state that you have consistently demonstrated qualities of compassion, responsibility and integrity.  They note that the tragic accident which occurred whilst you were an Uber driver deeply saddened you and had a profound impact on your life.  The authors describe you as law abiding and state that this offending is not reflective of your true character and that you suffer remorse and are committed to learning from this experience.  They describe you as a young man with a promising future, who has much to contribute to society.  Similar sentiments are expressed in other references from members of the community, namely, Gurdasham Singh dated 16 June 2024,[21] Gurpreet Singh dated 30 June 2024,[22] Amarjit Kaur (undated),[23] Varinder Singh dated 28 May 2023,[24] and Anupammeet Sran dated 27 June 2024.[25]

[21]Exhibit “2(ii)”

[22]Exhibit “2(vi)”

[23]Exhibit “2(vii)”

[24]Exhibit “2(ix)”

[25]Exhibit “2(xi)”

31There were also references from people who had known you in the context of your studies.  A reference from Daniel Clarke, engineering trainer at Baxter Institute, stated that you were one of his Certificate IV engineering students.  He described you as a bright and intelligent student, who consistently achieved good grades. He stated that you had been greatly emotionally and physically impacted by the terrible event for which you had been charged and you had had to take a couple months off your studies, but were committed to growing from this experience for which you had shown regret.[26]

[26]Exhibit “2(iii)”

32There were also two references from people with whom you had become friends whilst studying together at Oceania Polytechnic Institute of Education.  Both of these people have been your friends for some five and a half to six years.  One is Yogesh, who provided a reference dated 25 June 2024[27], and the other is Anupama, who provided an undated reference.[28]  Both of these people speak highly of you as a person of good moral character, who is hardworking, responsible, honest and reliable, with a deep respect for others and someone who is actively involved in community service through volunteer work.  They speak of you having been very upset, and emotionally, physically and mentally affected by the collision which has caused you to be under immense stress and trauma. They state that this type of wrongdoing is not typical of your character. 

[27]Exhibit “2(viii)”

[28]Exhibit “2(xv)”

33Another reference from Arpit Arora dated 22 May 2024 stated that he has been a college friend of two years.  He noted your exceptional skills and presentation and leadership during the courses you have studied together.  He described you as having outstanding personal qualities and he could see how disturbed you were by this tragic incident.[29] 

[29]Exhibit “2(xiv)”

34There is also a reference from Baljit Singh (undated)[30] who states that you have been friends for five years in the context of meeting up to play cricket together.  He described you as ambitious, strong, honest, enthusiastic and energetic in everything that you do.  He also stated that you are a very helpful and cheerful personality who is admired for helping others.  He expressed his disbelief that you could have been involved with this accident and stated that you have been emotionally and physically disturbed by it.

[30]Exhibit “2(xiii)”

35Finally, there was a reference from Gursewak Chahal,[31] undated, who has known you for 14 years, both in India and in Melbourne.  He described having a close bond with you and stated that you are person of remarkable maturity and reliability who has always been responsible and focussed upon your family and he has never known you to be involved in any form of misconduct or action showing moral depravity.  He stated that the tragic incident has affected you mentally and financially but, as an only child, you have still endeavoured to be responsible and help your family even though you were drained emotionally, physically and financially.  He stated that he was totally surprised by hearing of your involvement in this offending and that he believes you are genuinely remorseful and is confident that you will not repeat such offending again.  He described you as a venerable individual, a valuable member of the community and a good hearted person.

[31]Exhibit “2(x)”

36Mr Singh, the material before the Court indicates that, since arriving in Australia at the age of 19 years, you have been a law abiding, hardworking and decent person who has led a blameless life here.  The many references to which I have referred are evidence of your good character and I accept that you have expressed remorse to their authors, as well as to Ms Montero, who recorded your statements to that effect and that you wish to extend you deep sympathies to the family of the man whose death you caused.  I accept that your remorse is also indicated by your early pleas of guilty by which spared the victims of your offending an extra layer to their grief which may well have occurred if you had not accepted responsibility for your offending. Your pleas of guilty also have utilitarian value in facilitating the course of justice and saving the time and cost of a trial and the inconvenience of witnesses having to give evidence.  I have little doubt that you have been very stressed and anxious since this collision occurred and that the delay which has been caused through no fault of your own has weighed heavily upon you.  It is to your credit that you have continued to try to study and work as best you can in the 18 months which has elapsed since the collision.  I also accept that the sentence which I intend to impose means that it is inevitable that your visa to remain in Australia will be cancelled. This will bring an end to your entitlement to study here and, although your counsel acknowledged that you did not necessarily have an expectation that you would be permitted to settle in Australia, I do take into account that your likely deportation will be a matter which creates anxiety for you whilst you are serving your sentence.  Your counsel acknowledged that, since you were born and raised in India and your mother to whom you are close lives there, he could not establish that a return to your country of origin would create hardship for you.

37As I explained to you when I remanded you in custody following the plea hearing, it is not suggested that you intended to cause death or serious injury to anybody.  Dangerous driving is a serious departure from the reasonable standard of care which is expected of all drivers.  It involves such a serious breach in the proper management or control of your car that you posed a real danger to other members of the public in the vicinity.  Your driving created risks that significantly exceed the risks ordinarily associated with driving.  In other words, your driving created a risk of harm which was not a fair or necessary road risk.  Given that you had failed to pay heed to the very significant signage and markings leading up to the intersection and simply drove into the intersection without looking and against a stop sign which applied to you, even though your speed was not above the speed limit, the circumstances created a high likelihood of a collision and a high likelihood that serious injuries or death would result if a collision did occur.  I explained to you that, because of the significant number of deaths and serious injuries that occur on our roads due of people who drive dangerously, there is very great community concern about dangerous driving. In 2022 in Victoria, there were 241 fatalities and 653 cases of serious injury caused by drivers not exercising reasonable care and breaching road rules. In 2023 the number of fatalities increased to 295 and 605 people were seriously injured. That concern is reflected in the maximum penalty of 10 years’ imprisonment which applies to each of the charges to which you have pleaded guilty.

38The concern of the community about dangerous driving is also reflected in the fact that Parliament has legislated this offence to be a Category 2 offence under the Sentencing Act. This means that, unless an offender like yourself is able to make out one of the exceptions set out in s5(2H)(a) to (e) of the Sentencing Act, then a Court must impose a sentence of imprisonment (other than one which is imposed in addition to making a Community Correction Order).

39In what I regard as a misguided submission, Mr Oldham, attempted to argue pursuant to sub-paragraph (e) that there are substantial and compelling circumstances that are exceptional and rare in your case which warrant the Court not imposing a sentence of imprisonment.  As previously mentioned, he argued that your moral culpability for this offending was low as it was “momentary inattention”, which I have rejected.  He also sought to argue that your absence of a prior criminal record, your remorse, family hardship and additional burden of imprisonment due to anxiety about being deported, your previous good character, your early guilty pleas and good prospects of rehabilitation satisfied the exception in sub-paragraph (e) such that a Community Correction Order was an appropriate sentencing disposition. 

40In the course of discussion with me during the plea, Mr Oldham seemed to appreciate that this foundation could not satisfy the high hurdle of substantial and compelling circumstances that are exceptional and rare.  He then did not persist with his submission. This was appropriate, particularly given the specific terms of s5(2HC) which spell out in no uncertain terms that, in determining whether there are substantial and compelling circumstances, the Court must regard general deterrence and denunciation of your conduct as having greater importance than other sentencing purposes set out in s5(1) of the Sentencing Act; must give less weight to personal circumstances of an offender than to other matters such as the nature and gravity of the offences, and must not have regard to an offenders previous good character (other than an absence of previous convictions or findings of guilt) or an early guilty plea or prospects of rehabilitation.  Further, s5(2I) makes it clear that, in determining whether there are substantial and compelling circumstances, the Court must have regard to Parliament’s intention that a term of imprisonment should be imposed for this type of offence and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

41Unfortunately, a great deal of harm is caused by dangerous driving and it is often the case that the person causing that harm has never been in trouble with the law before.  It is clear from the relevant sentencing authorities that general deterrence must be given considerable weight in sentencing for the offences of dangerous driving causing death or serious injury.  This means that, in sentencing you, this Court must send a message to others in the community who do not pay heed to traffic signs and road markings and the surrounding circumstances when they are driving and who enter an intersection without keeping a proper lookout and thereby cause death and serious injury, that they will be appropriately punished.  A person who kills or seriously injures another while driving dangerously should expect to receive a significant term of imprisonment because the values of the community and what should be expected of those who hold the privilege of a driver’s license by driving with appropriate care for other road users must be upheld. 

42Although in your case a number of aggravating factors often seen in other cases are not present, such excessive speeding, being drug or alcohol affected or engaging in erratic, aggressive or competitive driving or showing off or escaping pursuit by police or being sleep deprived or failing to stop after a collision, the absence of those factors does not necessarily mean that you have low moral culpability for what occurred.

43You were driving your Uber vehicle with two passengers on board on a roadway where you simply were not paying attention to what was around you by way of warning signs or anticipated traffic or the fact that there was an intersection ahead where you were required to stop.  There was nothing to prevent you being aware that an intersection was ahead of you had you been appropriately focused on your task of driving and the repeated warnings by signage that you must stop at that intersection.  Having not heeded the numerous warnings and signs as you approached the intersection, you simply did not look to see what traffic might have been coming across your path into that intersection before you entered it against the stop sign without even braking.  The road conditions were good, the weather was fine and visibility was good.  There is really nothing which mitigates the serious lack of attention to driving which you manifested on that day.  Even though you were not driving at a speed in excess of the 60 kilometre speed limit at the time of the collision, you should not have entered that intersection at all, at that time.  For some reason you were simply not concentrating. I note that Ms da Gama Montero recorded, “A few days prior to 11 February 2023, Mr Singh informed this writer that his dear mother was very ill and advised bed rest by their family doctor.”[32] Your mother has apparently had some very challenging previous health issues according to that report. Whether this was on your mind on the day of the collision I am unable to say. However, there are no mitigatory factors in your case pursuant to R v Verdins or Bugmy v the Queen.[33]

[32]Exhibit “1”, page 3.

[33][2007] VSCA 62, [2013] HCA 37

44It is so fundamental given the grave harm which a car can do when its driver is not reasonably focused on the task of driving and all of the circumstances around him at the time of driving, that a vague, distracted driver can be every bit as dangerous in his manner of driving as a driver who is extremely fatigued or whose judgement is impaired by substance use.  This fact needs to be driven home by Courts in the sentences which they impose. I have found that only available conclusion is that the objective gravity of your offending and your moral culpability for it are both high.  The only appropriate sentence is a substantial term of imprisonment. 

45Your counsel urged that, because you are likely to be deported that the Court might consider a straight sentence of imprisonment. Section 11(2) of the Sentencing Act makes it plain that it is only where a Court imposes a term of imprisonment of less than two years that the Court has a discretion as to whether to fix a non-parole period.  In my view a sentence of less than two years would not adequately reflect the seriousness of your offending and its consequences.  Section 11(1)(b) makes it clear that, if a Court sentences an offender to be imprisoned to a term of two years or more, the Court must fix a non-parole period.

46On the day of the collision Ms Jorja O’Connor had taken her beloved grandfather, Mr Lewis Carnegie, aged 89 years, and his brother (and her great-uncle) Mr Peter Carnegie, who was aged 87 years, on a drive to the Yarra Valley from the aged care facility where they both lived and enjoyed each other’s company.  They were returning from that drive home when you collided with Ms O’Connor’s vehicle and killed Lewis Carnegie and caused serious injuries to Peter Carnegie.  No court can place a price on a precious life of Lewis Carnegie, which has been so needlessly taken by dangerous driving like yours.  Life is precious at all ages, and Lewis Carnegie and Peter Carnegie had lived long and wonderful lives in which they made a significant contribution in many different ways to their family, friends and community in general.

47In a poignant Victim Impact Statement by Ms Jorja O’Connor made on 15 July 2024,[34] she speaks of how her life was changed forever on the day of the collision.  She had grown up with a close and very loving relationship with Lewis Carnegie and her grandmother, who had died 11 months prior to the collision in March 2022.  Her grandmother’s last words before she died urged her to look after her grandfather, as she knew that she would not be around to do so.  She was devastated by her grandmother’s death, but poured all her energy into looking after her grandfather.  Even though she was busy finishing off her law course, she saw him three times every week and did everything she could to ensure that he was happy, well and safe as he found the transition to the aged care facility difficult after he lost his wife of so many years.  She regularly took him out and was there anytime he needed her.  His brother, Peter, had moved to be in the aged care facility with her grandfather after another brother, with whom Peter had run a farm, died in December 2022.  Ms O’Connor reflected that it was beautiful that her grandfather and her great-uncle had each other and could be together after the significant grief that each of them had suffered.

[34]Exhibit “E”

48Ms O’Connor stated that her grandfather was eager to have an outing from aged care and begged her to take him out for a drive, which she did, along with Peter on 11 February 2023.  They were so happy to be taken to McDonald’s and go for a drive, as they had done on countless other occasions.  On the way home the collision occurred.  It was plainly deeply traumatic for Ms O’Connor and her grandfather and great-uncle to have so suddenly found themselves subject to the car violently rotating and rolling onto its roof as it hit an embankment and all three of them were strapped in the car upside down.[35]  Ms O’Connor could not find her phone to call an ambulance and she lay on the roof of the car in front of her great-uncle, Peter, to undo his seatbelt so he would drop onto her and she could take some of the impact instead of him falling onto the roof of the car.  She then tried to help her grandfather, who was struggling to breath, and lifted him as someone else came to her aid and took him from her.  Ambulances arrived and, although she spoke briefly to her great-uncle, she was not able to speak to her grandfather before the ambulance left to take him to hospital.[36]  She stated that she desperately wanted to speak to her grandfather, to tell him that she was okay and reassure him that he would be okay, but that never got to happen.

[35]Exhibit A

[36]Exhibit “A”, paragraphs 15, 16, 17 and 19

49Ms O’Connor describes the trauma of her parents telling her that her grandfather had died and the severe psychological damage that she has suffered ever since 11 February 2023.  She suffered flashbacks and panic attacks and was unable to even get into a car as a passenger because of her fear and anxiety.  It took her almost a year of psychological treatment to even be able to sit in a passenger seat of a car.  She sold her own car and cannot physically or mentally bring herself to drive again, nearly a year and a half later.  Her independence has been eroded and she feels burdened by thinking why it was not her who had died.  She continues to see a psychologist weekly to deal with her mental struggles.  She imagines her grandfather being alone and scared in his last moments, not knowing what was going on, after he had lived a whole 89 years of happiness and also dealt with many hardships.  She states that she will spend the rest of her life with grief and struggle to gain back all that she has lost.

50Clearly, the aftermath of this collision has had an enormous adverse impact upon Ms O’Connor as she was just about to embark on her career as a lawyer. She feels terrible guilt even though she was driving safely within the speed limit and the collision was in no way attributable to anything which she did. As one witness stated, she didn’t stand a chance as you drove straight into the intersection into her car.[37]

[37]Exhibit A.

51Mrs Ann O’Connor, who is the daughter of Mr Lewis O’Connor, also made a Victim Impact Statement.  She describes rushing to the scene of the collision and seeing her daughter, Jorja, cut and bleeding and distraught, and her uncle, Peter, on the side of the road, along with her darling father.  Her uncle was awake but had a nasty gash on his head.  Her father was awake, but she barely had time to speak to him before he was taken away.  She said she will never forget his face as they were putting him in the ambulance.  He looked so frightened and was struggling for air.  The look on his face haunts her.  By the time she got to the hospital where her father had been taken, he had died.  She did not get a chance to hold his hand, tell him that she loved him or give him one more hug and kiss.  She then had to face the dreadful task of telling his brother, Peter, and then her daughter, Jorja, that Lewis had died.  She states that her family will never be the same again because you could not obey our road rules and stop at a stop sign.  She struggles to talk about her father.  Her sleep is disturbed and she worries about the toll on her uncle Peter and feels so powerless looking on seeing the distress of her daughter, Jorja.  She states that, every time she sees an ambulance, it takes her back to that horrible day of the collision.  She feels anxious, and losing her father in the way that she did has broken her.  She and her dad had planned to celebrate their 50^th and 90^th birthdays together later in 2023, but that joint milestone celebration was taken away.  Before the collision she had been working part-time in an aged care home, but she cannot manage this anymore and tries to spend as much time as she can with her uncle, Peter. She states that she is now overly protective of her daughter and all of her children on the roads.  She is not the person she was before that horrible day.

52Mr Peter Carnegie lost his brother and daily companion at the aged care facility, as well as sustaining very serious injuries from which he may well have died without medical intervention. Mrs Ann O’Connor, via the instructing solicitor for the Office of Public Prosecutions, stated that her uncle, Peter Carnegie, had slowed down from the busy life he was living on his farming property before his brother who ran the property with him had died, but he was still able and self-reliant.  As a result of the injuries in the collision his mobility has declined, he now needs to a rely upon a walking frame full-time and is classified as being at high risk of falling, which means that the family do not get to take him out as much as they used to do.  She also observed that his hearing has declined since the accident and this has also adversely affected his speech.[38]

[38]Exhibit “F”

53The heart rending consequences described by Jorja and Anne O’Connor are the understandable and foreseeable sad and tragic consequences caused when people like you do not take reasonable care when driving and pay little or no regard to a host of warning signs and markings and disobey a stop sign.  Dangerous driving like yours takes a huge toll on the community including the significant resources of ambulance officers and hospitals and medical facilities, the unenviable task of police officers who must attend scenes of awful collisions like the one you caused and invest time in taking statements and investigating the cause of the collision and, of course, the diminished quality of life for those like Peter Carnegie who has suffered serious injuries and the erosion of what independence he had before the collision, and the terrible grief that ripples through families when they lose a loved one like Lewis Carnegie.  They are consequences which are so avoidable, so unnecessary and, unhappily, the prevalence of dangerous driving causing these consequences means that the Court must denounce this offending and, as I have said, place emphasis upon general deterrence and just punishment.  It is through the emphasis of these sentencing principles that the Courts aim to try to curb further dangerous driving and reduce the terrible amount of deaths and injuries occurring on our roads.

54In arriving at the sentence which I intend to impose, as I have said I take into account your early and remorseful pleas of guilty. Indeed at the scene of the collision you asked police to tell the people in the other car that you were sorry and expressed the hope that they would be okay. I acknowledge the anxiety, stress and guilt which I know you have suffered through what you have caused, your prior good character not only in not having committed offences of any sort in the past, but by studying and working assiduously and making significant contributions to the community as attested to in the many references tendered on your behalf.  I have also taken into account the end of your capacity to study in Australia by reason of your likely deportation and I know that will weigh heavily upon you, along with the shame and distress you feel because of the impact that your offending has had on your mother to whom you are obviously very close.  It is tragic that a young man, like you, who came to Australia before the age of 20 years in order to better himself and who has worked diligently to do so has bought those good achievements to a sad end by this offending.  I have no doubt that you are fundamentally a good, decent and caring person and that you feel the weight of what you have done very keenly. I seriously doubt you will ever be involved in offending like this again. It has been a difficult and tragic way to learn a lesson about how responsible a driver must be – for himself, his passengers and all road users. I consider you will find being imprisoned very hard because you have had no contact with the criminal justice system before.  The Court hopes that all those good qualities of yours, which are mentioned in the many references, will assist you as you serve what must be a significant term of imprisonment and help you to come to terms with the consequences of your offending. I find your prospects of rehabilitation to be good.

55Although the same facts underpin both the charge of dangerous driving causing death and dangerous driving causing serious injury, it is important that the separate harm to each of the victims of your offending be acknowledged in the sentence that is imposed, albeit that in the interests of totality and an overall proportioned and just sentence there must be some concurrency. However, it is crucial that the victims of dangerous driving not be treated as mere statistics, they are members of our community, real people with distraught families. The dignity of those killed on the roads and suffering of those they leave behind must be acknowledged by courts, along with the impaired lives of those who receive serious injuries because of unnecessary collisions.  

56On Charge 1, dangerous driving causing death, you are convicted and sentenced to be imprisoned to a term of three years and three months.

57On Charge 2, dangerous driving causing serious injury, you are convicted and sentenced to be imprisoned for a period of twenty months.

58The base sentence is that of three and a half years imposed on Charge 1.  I direct that six months of the sentence imposed on Charge 2 be served cumulatively upon the base sentence.  The total effective sentence is thus three years and nine months’ imprisonment.  I direct that you serve a period of two and a half years’ imprisonment before becoming eligible for parole.  I declare a period of presentence detention of nine days be reckoned as time already served under the sentence imposed this day.

59Pursuant to s 6AAA of the sentencing Act, I state that, had it not been for your pleas of guilty the total effective sentence imposed would have been 5 ½ years with a non-parole period of 3 ½ years.

60Both charges are contrary to s319 of the Crimes Act, and are specified as a ‘serious motor vehicle offence’ pursuant to s 87P of the Sentencing Act. Accordingly it is mandatory to disqualify you from holding a drivers licence. Pursuant to s89(2)(a) the mandatory minimum period of disqualification is 18 months.

61Pursuant to s85P of the Road Safety Act 1986, a court must take into account any period of suspension which has already been served under Part 6B when fixing a period of disqualification or suspension. A notice of suspension was served upon you on 19 February 2024.

62On Charges 1 and 2 you are disqualified from holding a licence for an aggregate period of 2 years from today.

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