Director of Public Prosecutions v Singh

[2016] VCC 1826

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

AT MELBOURNE
CRIMINAL JURISDICTION   CR-16-00280

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUKHUINDER SINGH

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2016
DATE OF SENTENCE:	25 November 2016
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2016] VCC 1826

REASONS FOR SENTENCE

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Subject: Criminal law - sentence            

Catchwords:   Plea of guilty to one charge of dangerous driving causing death and one charge of being the holder of a Learner Permit and driving without an experienced driver beside him – offender crossed double lines and overtook two cars – collided with oncoming car –culpability at the higher end of mid-level – immediate custody appropriate- remorse – good prospects for rehabilitation

Cases Cited:Stephens v R [2016] VSCA 121, DPP v Oates [2007] VSCA 59, R v Guariglia, DPP v Neethling (2009) 22 VR 466, Boulton v R [2014] VSCA 342

Sentence:4 years, non-parole period of 2 years and 6 months.           

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Grant	OPP
For the Accused	Mr G Boas	Emma Turnbull & Assoc

HER HONOUR:

1Sukhuinder Singh, arising from a motor vehicle collision, in which a person was killed, you were charged with culpable driving and two further charges of conduct endangering lives.  At the commencement of the trial, you entered a plea of guilty to one charge of dangerous driving causing death.  At the end of the trial, the jury acquitted you of the other charges.  At the plea hearing a summary charge of driving without an experienced driver seated beside you whilst being the holder of a Learner permit was uplifted to this court and you have pleaded guilty.

2Tragically, John Voss was killed when his car, a blue Ford, travelling east in Bridge Inn Road, Wollert, collided with your car, a Holden Commodore which you were driving on the incorrect side of the road whilst overtaking two vehicles.

3It was urged upon me by your counsel that imprisonment as a punishment could be avoided in this case but for the reasons which follow, I have concluded that in the circumstances of this case, an immediate custodial sentence must be imposed.

THE OFFENDING

4The exact circumstances in which the collision occurred are somewhat imprecise.  What is known is that on 31 July 2015, you were driving west along Bridge Inn Road on your way to work at about 3.15 pm.  It was a fine sunny day.  The road is comprised of a single lane in each direction and at certain places there are unbroken white painted double lines, indicating that overtaking is unsafe. 

5The evidence was that this is generally a busy road and at that time of day it is used by drivers collecting children from school and by tradesman returning home.  There was a moderate amount of traffic travelling in both directions on the road that afternoon.  About halfway along Bridge Inn Road, between Epping Road and Plenty Road, there is a bridge where the road narrows and does not provide any roadside verge.  The speed limit for the relevant length of Bridge Inn Road is 80 km/h.

6You drove at or slightly over the speed limit, approaching the rear of a Toyota Kluger driven by Ms Carmel Moleta and decided to overtake her car.  A short distance ahead of the Kluger was a Toyota Corolla, driven by Ms Lynette Bowen.  You overtook the Kluger, crossing double white lines and as you drew parallel or almost parallel with the Kluger and whilst partly on the incorrect side of the road, you saw the Ford, driven by Mr Voss, coming towards you.  Your response was to accelerate, reaching a speed of 116 km/h instead of slowing and pulling safely into a space between Ms Moleta's car and the Toyota Corolla in front of her, driven by Ms Bowen.

7You did not see the double white lines nor did you look for them or consider they might be there.  In that sense, you did not deliberately cross the lines but crossed them in circumstances when you should have checked for them.  You dispute that there was enough space to pull into between the two cars, which you say justifies your decision to accelerate in order to overtake Ms Bowen's car as well. 

8In your attempt to get in front of her Corolla, the rear passenger side of your car clipped the front driver's side of the Corolla, causing the Corolla to veer to the left and leave the road, coming to rest in a drain at the side of the road some distance ahead.  Fortunately, neither Ms Bowen nor her passenger were injured.  Meanwhile, because of clipping Ms Bowen's car, you lost control of your car and veered to the right into the path of the car driven by Mr Voss.

9The prosecution case was that it was likely that you commenced the overtaking manoeuvre whilst on the bridge but there was no direct evidence of this. 
Ms Moleta could not say where this happened and although you thought it was just after the bridge, you also were not sure. 

10When giving evidence at the trial, you were unable to say why you decided to overtake the Kluger.  The driver, Ms Moleta, said she was travelling at about
70 km/h and Ms Bowen, driving the Toyota Corolla, at 80 or just under.  You denied that you were in a hurry and denied that you were frustrated at the slower speed of the car immediately in front of you.  You had not been speeding but reached a very high speed in your effort to reach safety after deciding to overtake the second car.

11Your explanation of that decision, as I said before, is that there was insufficient space between the two cars for you to pull in, which contradicts that of
Ms Moleta.  She said she always allows for a safe distance between her car and any car ahead and on this occasion, she slowed down, leaving two car spaces in front, intending to allow you to move in but you did not.  She had thought you could do this but you said in evidence that the space was no more than a car length.  You also said that as you approached the rear of the Kluger, the space between that car and the car directly in front of it was half a car length. That indicates that you were prepared to commence to overtake, knowing you had to pass the two cars and there would be no opportunity to pass only the Kluger and pull in behind the Toyota Corolla.  You have admitted that in crossing double lines and overtaking, you drove dangerously and you have accepted responsibility for causing the death of Mr Voss. 

CONSEQUENCES OF THE OFFENDING

12I heard victim impact statements read to the court by Anna Torchia, who was Ms Voss's girlfriend and by his best friend, Shannon Smyth.  Other statements read to the court were provided by his parents, his brother Peter and another close friend, Matthew Baker.  Mr Voss was aged 30 and was on his way home from work when the collision occurred.  He belonged to a close family who miss him greatly, as do his girlfriend and friends. 

13The maximum penalty for the offence of dangerous driving causing death is 10 years' imprisonment.  The need for general deterrence is significant in such a case because of the great harm that can be caused and has been caused on this occasion.  It is accepted, however, that this crime covers a very wide range of conduct[1], usually attracting a custodial sentence but qualified by the need to take into account variations in the moral culpability of the person responsible.  It may be that where that moral culpability is of a low level, a custodial sentence could be avoided.  That is the course urged upon me by the defence. 

[1] Stephens v R [2016] VSCA 121

14In contrast, the prosecution submission is that your driving was a serious example of the crime and was extremely dangerous, creating an extremely high degree of risk.  It follows, says the prosecution, that the level of moral culpability was not low, but in the mid-range of seriousness.  Taking into account the decision you made in commencing to overtake and crossing double lines to do so, without having checked at to their existence at that location, I am satisfied that the level of culpability was in the mid-range of seriousness, indeed, at the higher end of the mid-range.  It was a serious example of a serious offence.

SENTENCING ISSUES

15The authorities include cases where the low level of culpability has allowed for leniency in the form of a Community Correction Order, such as in the case of Oates[2], where the offender's dangerous driving causing death constituted a momentary inattention, which did not warrant a custodial sentence. 

[2] DPP v Oates [2007] VSCA 59

16In assessing the degree of culpability in this case, I have considered the features which may be said to be aggravating.  They are that the driving occurred on a stretch of road that provided for a single lane of traffic in each direction with a speed limit of 80 km/h on a busy road at a busy time of day,  the dangerous driving itself being the overtaking of two cars across double lines.  The high speed that you reached was a consequence of the situation you placed yourself in by deciding to overtake.  It is put by the prosecution that the overtaking occurred on the narrow bridge but as I have already said, there is no evidence of this and your own uncertainty and that of the witness means I cannot draw that conclusion. 

17A further aggravating feature is that you were a learner driver who was driving without a licensed driver beside you, which is a requirement of a Learner Driver's permit.  You were in breach of the law and you had never undergone the test for your probationary licence.  It indicates a disregard for the law. 

18While you were therefore not equipped with the experience that goes with becoming a qualified driver, you had nonetheless, been driving for four years without ever coming to the attention of the police or breaching any traffic laws or road rules until this time. 

19The prosecution also relies on the fact that not being under the influence of alcohol or a drug, you therefore made a rational decision to overtake in disregard of the road rules and the safety of other road users.  In the case of R  v Guariglia[3], this was said to have made the conduct worse. 

[3] [2001] VSCA 27 at par [14]

20Mr Boas, on your behalf, urged me to reject that proposition as being something upon which the Court of Appeal in that case may not have placed much reliance.  He submitted that the driving in each case was very different.  Although the proposition has some appeal, it may not withstand rigorous scrutiny and I hesitate to adopt it.  Accordingly, I put it to one side.

21I was referred to the decision in DPP v Neethling[4], which sets out a number of factors capable of aggravating the seriousness of the offence of dangerous driving causing death or serious injury.  In that case, the driver had had his licence for 12 days and so his inexperience was manifest, unlike in this case.  That case also involved an overtaking across double lines but in reduced visibility conditions and at speed in wet conditions.  The driver's culpability was considered to be high. 

[4] (2009) 22 VR 466

22Although in this case you drove at speed when you realised you could not safely overtake without speeding, and you overtook in extremely dangerous circumstances, putting at risk the lives of road users generally.  The level of culpability is lower than it was found to be in Neethling but not so low, as I said earlier, as to avoid a custodial sentence.

23General deterrence is of great significant in a case like this because of the extreme danger this sort of driving presents and the great risk to all road users.  Younger and less experienced drivers are particularly to be singled out for learning from the tragic deaths and injuries inflicted by such driving and that should be reflected in the sentence.  It should also provide a sense of justice for the community to know that in most cases such driving warrants a custodial sentence.  As to specific deterrence, some weight should be attributed to it, even though recidivism is fairly rare in these cases and the indications are that you are unlikely to offend in this way again. 

24Your good prospects for rehabilitation should be part of several mitigating factors to be taken into account.  Others include your plea of guilty to the charge at an early stage.  You offered to plead guilty in satisfaction of all the charges but this was rejected by the prosecution.  This plea means you are entitled to a discount on your sentence as, if accepted, it would have avoided the committal and the trial and the matter would have been dealt with much earlier.

25A plea of guilty is also generally accepted as an indication of remorse and for having taken responsibility for the offence and I am satisfied that you have done that.  You have expressed your remorse in speaking with your family and with seeming sincerity in a letter you have written to the court.  In expressing your sorrow, you hope that your sentencing brings some comfort to the Voss family, and that they will remain in your thoughts for the rest of your life. 

26You are, at the age of 23, a youthful offender, and a man with no prior convictions.  It is accepted that rehabilitation is of primary importance for a youthful offender but that primacy sometimes has to give way to other sentencing considerations, as it was put in the case of Neethling[5].  General deterrence is of great importance, as I said earlier, and so your youth must be given relatively less weight. 

[5] Ibid para [53] – [55]

27You are one of five siblings coming from a good family who have supported you during the trial.  Your mother died when you were very young and you and your brother were sent by an uncle to be educated at boarding school in India. 

28Since your return to Australia, you have been working and living with one of your siblings.  You were badly injured in the collision and spent weeks in hospital recovering from abdominal surgery, with a need for surgery on your ankle in the future.  That is a matter to be taken into account as extra-curial punishment, together with the other mitigating factors, including your hitherto good character and the fact that you have not ever been in prison before. 

29The submission by Mr Boas was that a Community Correction Order would be suitable, following the guidelines set out in the case of Boulton.[6]  Mr Boas submitted that taking into account those guidelines as well as the availability of a suspended sentence up until 2013 for this offence, which was commonly imposed, the circumstances of this case allow for a Community Correction Order to be imposed.  I have stated that this case, being at mid-level seriousness and at the higher end of that mid-level, a community correction order is not within range.

[6] Boulton v R [2014] VSCA 342

30Accordingly, I sentence you to four years' imprisonment.  I order that you serve a minimum period of two years and six months before being eligible for parole.  Any licence or permit to drive that you may hold is cancelled and you are disqualified from obtaining a further permit for four years.  For the summary charge, you are convicted and fined $1000.  If you had pleaded not guilty, I would have sentenced you to five years' imprisonment with a non-parole period of four years with a fine for the summary charge of $1500.

31The prosecution seeks an order for a forensic sample of saliva to be obtained.  Mr Boas, I have not heard what your instructions are in that regard.

32MR BOAS:  That is conceded to, Your Honour.

33HER HONOUR:  Conceded to, thank you.  I make that order and Mr Singh, I must advise you, police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.  Are there any other matters, Mr Boas?

34MR BOAS:  None from the defence, Your Honour.

35HER HONOUR:  Thank you.  Mr Grant?

36MR GRANT:  No, Your Honour.

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