Director of Public Prosecutions v Singh

[2023] VCC 2033

CH

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

 Revised
 Not Restricted
Suitable for Publication

Case No. CR-22-00598

DIRECTOR OF PUBLIC PROSECUTIONS

v

IQBAL SINGH

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JUDGE:	JUDGE DAWES
WHERE HELD:	Ballarat
DATE OF HEARING:	17 October 2023
DATE OF SENTENCE:	03 November 2023
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2023] VCC 2033

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Dangerous driving causing death

Legislation Cited:  Sentencing Act 1991 (Vic); Mental Health Act 2014 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 62

Sentence:  10 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Offender	Mr M. Singh	Dhillon Legal

HER HONOUR:

1Iqbal Singh, you have pleaded guilty to one charge of dangerous driving causing death, contrary to s319(1) of the Crimes Act 1958. The maximum penalty for this offence is 10 years’ imprisonment. You were 30 years of age at the time.

2The circumstances of your offending have been provided in the Summary of Prosecution Opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows.

3At 4.53 pm on Wednesday 12 May 2021, a fatal collision between two prime movers occurred on the Glenelg Highway in Carranballac, Western Victoria.  Mr Matthew Jessup was the driver of a Scania prime mover, which sustained major damage as a result of the collision. He suffered fatal injuries. 

4The collision occurred on a two-way, undivided road with a single lane in each direction.  The opposing lanes were divided by white painted lines and were made of bitumen, in good condition.  The highway was generally flat and there was a slight bend in the road, where the main collision occurred.  The speed zone was 100 kilometres per hour.  It was an open rural area with farmland on both sides of the highway.  At the time of the collision, the road was dry, the weather was clear and it was daylight. 

5You were employed to drive a Mercedes Benz prime mover, which towed two tipper trailers in a B-double configuration. You held a full driver’s licence with a multicombination endorsement. 

6Prior to the collision, you had driven the prime mover to the GrainCorp site where your two trailers were loaded with grain, weighing in total 68.45 tonnes. You left at 4.32 pm and drove along the Glenelg Highway through Streatham; you slowed down as you approached the entry to a 'rest area', to the left of the highway.  At that time, you were followed by an Isuzu truck driven by Mr Carl Skudder, who overtook you. You both then travelled in the same direction.  You did not enter the rest area, as you later stated that you missed it.

7After less than 10 minutes, Mr Skudder approached a John Deere tractor, travelling in the same direction at about 30 kilometres per hour.  Mr Skudder lifted his foot from the accelerator and began to slow down; he did not use his brakes. GPS data indicated that he travelled at around 62 kilometres per hour at a location close to where the collision occurred.  He then drove at a similar speed to the tractor for about a minute or two.  He did not overtake the tractor, as there was a bend in the road to the left. 

8As they approached the bend, you came up behind them at a much faster speed, which was assessed at the location of the collision as 98 kilometres per hour. You belatedly applied your brakes and steered to the right but were unable to avoid the passenger side of your prime mover from colliding with the rear driver side of the Isuzu truck.  That collision forced the truck off the road to the left, through a fence, and into a paddock on the northern side of the highway. 

9After striking the truck, you continued to cross over the centre dividing line onto the other lane of the highway. You drove directly into the path of the Scania prime mover, driven by the victim. The two prime movers collided head on; it appears that they were travelling at a similar speed.

10The severe impact of the collision forced both prime movers and their trailers to compress and they ended up in the grass area, on the southern side of the highway.  Both cabins were torn from their chassis as a result of the impact. 

11Mr Skudder removed himself from the Isuzu truck after the collision.  He was in shock but not injured.  After a brief period of unconsciousness, you managed to remove yourself from the wreckage of your prime mover. I am told that from the moment you left your vehicle, you were desperate to help the deceased man. I accept this.  Mr Jessup was trapped inside the cabin of the Scania prime mover, and he died at the scene. 

12Reliance is placed upon the following factors to prove that the manner of driving was dangerous:

·        You drove a fully laden, heavy and long prime mover, on a single lane two-way highway which was surrounded by farms. It was not unlikely that slow moving farming vehicles utilised the highway.

·        You drove at a speed towards the speed limit at the relevant time.

·        You were engaged in a casual hands-free telephone conversation leading up to and at the time of the collision.

·        You did not keep a proper lookout and failed to observe the Isuzu truck slow down behind the tractor ahead of him. 

·        For 1.4 kilometres approaching the area of impact, you were seated in a high position in the driver’s cabin. There were no obstructions to your line of sight, such as sharp curves, crests, dips, signs, vegetation or roadside furniture.

13As I said, you were briefly unconscious after the accident, however, you did not suffer brain injury.  You were airlifted to the Royal Melbourne Hospital where you received treatment for three days. Pieces of glass which had lodged in your head and around your eye were removed. A blood sample was taken, soon after the incident.  It returned a negative result to any substance that may have impaired your driving ability.

14You were spoken to by police with the assistance of a Punjabi interpreter and made a 'no comment' record of interview.  You were charged with several offences, including the current offence and culpable driving causing death.  You were remanded into custody after you left hospital and released on bail on 28 May 2021.

15Your driving resulted in the death of Mr Jessup, who was 37 years of age. The consequences of your offending are of the utmost gravity. Your counsel concedes as much. No sentence can compensate Mr Jessup’s family and friends for their loss. You will have to manage the consequences of your driving on this day for the rest of your life.

16You admit through your guilty plea that your driving was dangerous. You travelled on a clear day, in a relatively straight line for 1.4 kilometres before the collision. The Isuzu truck must have been within your line of sight throughout this period. It cannot be sensibly maintained that your inadvertence was momentary. It was of some duration and sufficient, given the other circumstances that I have mentioned, to constitute the offence of dangerous driving causing death.

17You have been unable to provide an explanation for your offence.  It is not clear if it was due to your being on the phone, whether you felt tired at the time or some other unknown reason.  Regardless of that, you should have appreciated the truck in front of you was slowing down.

18You did not breach any specific road rules and you drove within the speed limit.  There was no use of alcohol or drugs, and no deliberate risk-taking behaviour.  There is an absence of aggravating factors that often accompany this type of offending. Overall, I am satisfied that your objective gravity is towards the lower end of the range of conduct that can constitute this offence. For the same reasons, I am satisfied that your moral culpability is towards the lower end of the range seen in this type of offending. Saying that, I wish to make it clear that I do not underestimate the immeasurable value of the loss of Mr Jessup’s life.

19On 15 May 2019, you pleaded guilty in the Magistrates Court to two offences under the Road Safety Act, including one charge of drive at a dangerous speed. You were fined an aggregate of $1,000 without conviction.  Your licence was cancelled and you were disqualified from driving for 12 months. In my view, this has some relevance, although the relevance is limited by the circumstances of the current offence.  You were not in excess of the speed limit at the time; nor, had you been keeping a proper lookout, was your speed inappropriate. 

20Mr Jessup’s wife and mother attended the plea hearing remotely.  Your conduct has caused his family profound and enduring grief, sadness and pain.  Four Victim Impact Statements were tendered, three of which were read to the court by the informant. 

21His mother describes that her son’s death has left a hole in her life that will never be filled. One of the hardest days was when she was required to provide DNA samples, as it was not possible for him to be visually identified. This has 'destroyed her'.

22His wife describes the devastating impact his loss has had both on her and their two young children. The pain that her children endure is heart rending and his loss continues to burden and impact every aspect of the family’s life. The long-term effects of this tragedy continue to reverberate.

23His 19-year-old niece was in Mr Jessup’s care for eight years. She writes that he loved her like she was one of his own children. She misses him every day and has battled with depression since his death.

24One of his lifelong friends writes that the impact of your conduct has been devastating and severe.  She suffers persistent grief and dearly misses him.

25It is difficult to contemplate the depth of loss and the impact of your offending on Mr Jessup’s family and friends.  It is clear that he was a very good man; a much-loved son, husband, father, uncle and friend. He is greatly missed. The tragic consequences of this collision, including the content of the Victim Impact Statements, are not in dispute. I take those statements into account.  

26Your matter proceeded as a contested committal on 13 April 2022. The cross-examination related to an analysis of the evidence. A s198B hearing was also conducted on 7 February 2022. The prosecution indicated that they would withdraw the culpable driving charge and a sentence indication was sought, but not given. You entered your guilty plea one week later, on 15 June 2023.

27Your plea was entered at a relatively early stage, as the more serious offence was withdrawn shortly before you pleaded guilty. It has a significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial.  It also facilitates the efficient administration of justice, and you are entitled to a benefit for that. The utilitarian benefit of the plea is to be enhanced by the fact that Worboyes[1] considerations are relevant.

[1] Worboyes v The Queen [2021] VSCA 169.

28Your plea of guilty shows that you have accepted responsibility for your criminal conduct. I accept that your guilty plea can be properly used as evidence of your remorse.  It is clear that you regret your actions and not just the situation that you now find yourself in.  Importantly, you gave evidence upon your plea and directly expressed your remorse to Mr Jessup’s family and friends.  You acknowledged how difficult it must be for them to manage his loss.  You realise the sorrow and pain that they undergo, as they are deprived of seeing him again.  You stated that it was so hard for you to listen to the Victim Impact Statements, as it reinforced the impact of your conduct and the heavy burden that you will carry for the rest of your life. 

29This offence occurred in the course of your employment. A post-collision inspection revealed no mechanical fault would have caused or contributed to the collision. You have continued to remain supported by your former employer, Mr Charles Pithie, throughout the criminal proceedings. You are most fortunate in that regard. You had worked for him for between three to four months before the accident occurred and were a punctual, reliable and well-respected employee. He gave evidence on your behalf and confirmed that you have demonstrated remorse for your offence and have empathy for the victims.

30Three brief character references were also tendered on your behalf. They describe you as a decent, hardworking and trustworthy person who has undergone significant stress as a consequence of this traumatic incident.  You are ashamed of what has happened and feel deeply sorry for Mr Jessup’s family.

31I accept that your apology is genuine and that you have deep remorse for your misconduct. I take that into account in your favour.

32I turn now to your personal circumstances. 

33You were born in May 1991 in India.  You are the second in a sibship of four.  You were raised in a small village in the Punjab region, in a stable family environment. You did not undergo any learning, social, emotional or behavioural problems in your formative years.  

34You completed secondary education in India. After leaving school, you did six months of a tertiary course before you started to work on a farm with your father. You remained doing so until 2015, when you first arrived in Australia on a tourist visa.  You are now on a bridging visa and awaiting the outcome of a sub-class 820 partner visa.

35You came to Australia, aiming for a better life.  You have worked in various forms of employment and were hopeful of a bright future with your partner at the time that the accident occurred.  You are currently employed as a labourer in farming and in receipt of approximately $900 per week.

36You met your wife in Australia and were engaged at the time of your offence.  You married in June 2021, as the wedding was already planned, and you had been released on bail.  You bought a home in Shepparton in March 2022.  You now have two children together, born in June 2022 and August 2023.  You reside with your family at home. Your mother lives here as well.

37At the request of your solicitor, you participated in an assessment with Ms Carla Lechner, clinical psychologist.  She has provided a report for the court dated 18 May 2023.  Your personal history and circumstances have been summarised in the report.  You disclosed that you cannot clearly recall what happened at the time of the accident but believe that you were focusing on the road. You are devastated by the fallout of this accident, both personally and for the victim and his family.  You have 'no words to express your sadness'.

38Ms Lechner has made the following observations and findings:

·        Although not formally assessed, you were found to be of average intelligence.

·        You do not present with any premorbid mental health issues, no substance abuse problems, or symptoms of a personality disorder. 

·        You have been traumatised by the accident.

·        Your mental health has deteriorated and you have become socially withdrawn.  

·        You currently present with symptoms of adjustment disorder with mixed depression and anxiety at a clinical level, and PTSD, both reactive to your involvement in the accident. 

·        You contend that your PTSD range of symptoms are at an extreme level, that interfere with your working focus and interpersonal relationships.  You feel constantly distracted. 

·        You would benefit from psychological support and treatment.  You are seeing a psychiatrist who may offer pharmacological intervention to address some of your symptoms.

·        In light of your current level of anxiety and depression, you are likely to find imprisonment a difficult experience.

·        A further decline in your mood state, in the event of incarceration, is anticipated.  This is especially so, as you would be unable to support your wife financially and emotionally.

·        Whatever the outcome of these proceedings, you would benefit from further psychiatric assessment and psychological supports that are trauma-focused. 

39Your counsel relies on the submission that Limb 5 of Verdins[2] is enlivened.  The prosecution does not dispute that this applies.  I accept that a custodial sentence would weigh more heavily on you than someone without your mental conditions, particularly as you have never been sentenced to imprisonment before. I take that into account.

[2] R v Verdins [2007] VSCA 62.

40It is submitted that your family will suffer exceptional hardship if you are imprisoned. Your wife will be the sole carer of your young children. She is unable to pay the mortgage, which is currently $1,200 per month and due to significantly increase in two months’ time.  Your wife receives a limited Centrelink payment, as her only income. She does not speak functional English. Her hardship will be aggravated by the fact that she faces the burden of knowing that you may face deportation upon your release from prison. Your wife is a permanent resident in Australia. It is submitted that the court should exercise mercy in sentencing, and that exceptional circumstances are made out.

41I do not agree that the relevant circumstances are exceptional. Regrettably, they are not uncommon when terms of imprisonment are imposed. I accept that your family will suffer hardship as an inevitable consequence of your imprisonment. Further, I accept that you will suffer significant anguish as a result of your inability to provide support for them, which will result in your time in custody being more onerous. I take that into account.

42You are not an Australian citizen and on a bridging visa.  If you receive a sentence of imprisonment of 12 months or more, you are likely to be deported.  It is well-accepted that the additional burden of the prospect of deportation is a relevant consideration in the sentencing process.

43Dangerous driving causing death is a Category 2 offence pursuant to the Sentencing Act1991.[3] The Act is prescriptive in the type of penalty to impose in your case, being a term of imprisonment unless the relevant circumstances set out in s5(2H) (a)-(e) of the Sentencing Act are enlivened. It is submitted on your behalf that s5(2H) (c)(ii) and s5(2H) (e) are made out and that a Community Corrections Order (CCO) would be the appropriate disposition. The prosecution does not accept that either of these exceptions are engaged and therefore a sentence of imprisonment is the only option.

[3]Sentencing Act1991 (Vic) s 3(1)(eb).

44Section 5(2H) of the Sentencing Act relevantly requires that in making this determination,

(c)   the offender proves on the balance of probabilities that—

(ii)     he has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or

(e)    there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of part 3

45Section 5(2HB) states:

In subsection (2H) impaired mental functioning has the same meaning as in section 10A Mental Health Act”

46Section 5(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—

(a)must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and 

(b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c)must not have regard to— 

(i)the offender's previous good character (other than an absence of previous convictions or findings of guilt); or 

(ii)an early guilty plea; or 

(iii)prospects of rehabilitation; or 

(iv)parity with other sentences.” 

47Section 5(2I) requires the court:

“In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—

(a)the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and

(b)whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.”[4]

[4] These sections of the Act were not read to the Court.

48The net effect of the legislation is that on this charge, I must impose a term of imprisonment unless I am positively satisfied that one of the exceptions are met.

49Your counsel has submitted that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. The prosecution does not agree with this submission. 

50Impaired mental functioning means 'a mental illness within the meaning of the Mental Health Act 2014'. The Mental Health Act defines 'mental illness' as a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.[5]

[5]        Mental Health Act 2014 (Vic) s 4(1).

51When considering s5(2H)(c)(ii), the onus is on you to prove, on balance, your impaired mental functioning and that it would result in a substantially and materially greater burden of imprisonment, in order to avoid a gaol term.

52Your counsel relies on Ms Lechner’s assessment which I have set out earlier in these reasons. She writes that you would benefit from treatment services which are more likely to be available in the community. 

53The symptoms of the disorders that you suffer, in my view, are not sufficient to amount to a finding that your mental functioning is impaired, or that there is significant cogent evidence to support the exception within s5(2H)(c)(ii). It follows that I am not satisfied to the requisite standard that you have impaired mental functioning that falls within the required definition, or that it can be characterised as a significant disturbance. Further, I am not satisfied that it would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. The hurdle set by s5(2H)(c)(ii) is higher than that which attracts the principles in Verdins.

54Your counsel also relied on the exception found in sub-s(2H)(e). The prosecution does not agree with this submission. Through a combination of provisions, paragraph (e) requires the court to evaluate whether there are substantial and compelling circumstances that are exceptional and rare, and that justify not imposing a sentence of imprisonment.  Certain matters must be disregarded or given less weight, and other matters must be given greater importance. The burden you are required to meet is very onerous.

55Your counsel has relied on:

·        The low objective gravity and low moral culpability of your offending.

·        Your mental health and PTSD.

·        Your level of insight and remorse.

·        The value of your guilty plea.

·        The impact of your incarceration on your wife and children, which deprives them of your emotional, financial and physical support.

·        Your risk of deportation.

·        The uncertainty of your future.

56Even if I were to accept that overall, your circumstances are substantial and compelling, I am not satisfied that they are exceptional and rare.  The intention of Parliament is clear from the language used and my sentencing discretion has been pared down. I am not satisfied that a departure from a sentence of imprisonment is justified.

57There is no dispute that the 16 days you spent on remand were more onerous than for prisoners prior to the COVID-19 pandemic.  These conditions added to your hardship in custody, including time in quarantine, particularly as this was your first incarceration.

58The objective gravity of the offending and moral culpability of the offender are both of key importance when determining the appropriate sentence for this charge.  General deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment. I do not believe that specific deterrence should be given specific weight in the sentencing mix, and I consider that your prospects of rehabilitation are excellent. I take into account the maximum penalty for this offence and current sentencing practices.  I have considered the cases to which I was referred. They are a guideline of current sentencing patterns.

59I do not discount your counsel’s plea for mercy. However, in the circumstances of this case, I am unable to accept the submission that a CCO is appropriate.  Ultimately, I am required to impose a sentence that is proportionate to the gravity of your offending.

60I will now wait for the interpreter to finish.

61INTERPRETER:  I have just finished.

62HER HONOUR:  Thank you.  I will now impose sentence.

63Balancing all these factors as best I can, you are convicted and sentenced to 10 months’ imprisonment.

64The declaration I make under 6AAA is had the matter not proceeded as a plea of guilty I would have imposed a sentence of 16 months with a non-parole period of 10 months.

65I have considered the short period of time where you were remanded.  I have taken that time into account, but I have not included it as pre-sentence detention when fixing this sentence.

66Your licence is cancelled.  You are disqualified from driving for a period of 18 months.  That period commences today.

67Were there any further orders sought, Mr Brown?

68MR BROWN:  Your Honour, there was a forfeiture order sought in relation to the mobile phone, and I also believe that on the court system there's an outstanding charge of careless driving which, in the circumstances, should be withdrawn.

69HER HONOUR:  Yes, careless driving was an alternative. It will be withdrawn and struck out.  Is there any objection to the application for forfeiture?

70MR SINGH:  At some stage – I haven't got fresh instructions – my client was seeking the phone back (indistinct) hands of court.  The phone wasn't used, there's no indication that that actually caused the accident.

71HER HONOUR:  The phone was used at the time and I have made reference to that.

72MR SINGH:  Yes, Your Honour.  I won't take it any further, it's a matter for the court.

73HER HONOUR:  In those circumstances, given that there's been some time to object, ultimately I am going to order that the phone be forfeited. The order is granted.

74MR SINGH:  As the court pleases.

75HER HONOUR:  Mr Singh, your client will be remanded and taken out into custody, would you like to approach him briefly before he is excused?

76MR SINGH:  Yes, Your Honour.  Thank you.  Thanks for that contact (indistinct).

77HER HONOUR:  Thank you.  I thank the interpreter, and I will now cut the link. I'll ask if you could remove the prisoner please.

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