Director of Public Prosecutions v Singh
[2012] VCC 519
•20 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00852
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUKHWINDER SINGH |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 April 2012 | |
CASE MAY BE CITED AS: | DPP v Singh | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 519 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms J. Malobabic | |
| For the Accused | Ms S. Poulter |
HER HONOUR:
1 Sukhwinder Singh, you have pleaded guilty before me to one charge of dangerous driving causing death, and one charge of dangerous driving causing serious injury. The actions underlying your offending are as follows.
2 You are an Indian national who arrived in Australia in 2009, and at the time of this offending you held an Indian driver’s licence but were not licensed to drive in Australia.
3 Early on the morning of Thursday, 30 September 2010, you attended the Nunawading Aquatic Centre in the course of your job as a cleaner after performing other cleaning duties in another suburb. You were driving a white 1998 Mitsubishi Lancer two‑door coupe. At some point you went to your home address in Glen Waverley and collected Gursharan Singh to help with your cleaning duties at the RACV Country Club in Healesville, and the two of you then drove to work. You completed your duties there at about 6 am, then drove back towards Melbourne with Mr Gursharan Singh sitting in the front passenger seat and you driving.
4 As you drove towards Melbourne a number of other cars were also travelling in the same direction, driven by David Ring, Timothy Madigan, Kenneth Flint and Stephen Payne. As you drove along the Maroondah Highway you overtook David Ring’s vehicle against unbroken white lines; that is, on an area of the road which is designated as unsafe for overtaking. You continued on, and then overtook Timothy Madigan’s car at a point where there was a slight crest in the road which was controlled by double white lines; again, that is, you overtook at a part of the road designated as unsafe for overtaking.
5 You continued driving on for some distance on the wrong side of the road, and overtook a cream-coloured van in front of Mr Madigan. The road markings changed to a broken white line for the time you were on the wrong side of the road and then approaching a crest on the highway. The cream van was being driven by Kenneth Flint, and you overtook Mr Flint’s car as he was travelling up a hill at about 95 to 100 kilometres per hour. That portion of the road was controlled by double white lines at that stage, and you suddenly overtook him, crossing those double white lines as you did so. It is the Crown case that you would not have been able to see at this point what was coming over the hill the other way. Mr Flint saw your car start to fishtail and travel on the wrong side of the road in the path of an oncoming Toyota Land Cruiser about 60 metres from the point where you overtook him.
6 After overtaking Mr Flint you quickly approached another vehicle which was being driven by Mr Payne, who was travelling at about 100 kilometres per hour and did not even notice you approaching him, and said in his statement that you seemed just to appear behind him. As your car approached Mr Payne’s car, it was Mr Payne’s view that you appeared to be losing control, and that the rear of your car was moving from side to side and crossing over the centre line, and you appeared to be braking hard. Mr Payne then saw a car coming in the opposite direction, and saw your car in the rear mirror spinning out of control and doing a right turn across the wrong side of the road.
7 Richard Elderhurst was driving a Toyota Prado station-wagon towards Healesville which was fitted with a front bull-bar. He was going up a significant rise in the road to a blind crest of the hill, and as he travelled up the beginning of the hill he saw your car coming over the crest in his line, travelling straight towards him. He put his foot on the brake and was looking for a way to avoid the collision, but before he took any action saw your car moving hard back to the right, back into the correct line of traffic behind Mr Payne’s car. He thought at that stage he had escaped the collision, but then your car appeared to go out of control and started to rotate around as Mr Elderhurst swung his car hard to the left to avoid a head-on smash. Your car then crossed over to the wrong side of the road and collided with Mr Elderhurst’s vehicle. Your car hit Mr Elderhurst’s car to the front of the driver’s side, forcing your car to spin around. As a result of the impact, both vehicles rotated in a clockwise direction and sustained extensive damage before coming to rest.
8 At the location where the collision occurred on the Maroondah Highway the road is a single lane in both directions, with a speed zone of 100 kilometres per hour. The speed of your car at the point of loss of control was, according to police experts, 106 kilometres per hour. At the point of impact, following brake application by you, the impact speed would have been 98 kilometres.
9 The collision occurred approximately 70 metres east from the peak of the hill. At the point of oversteering and loss of control leading to the collision with Mr Elderhurst’s car there are double solid white lines applicable to both directions of traffic, indicating the positive unsafeness of overtaking at that point. The roads were damp from overnight rain. The sun was rising and directly behind you.
10 As a result of the collision, Mr Gursharan Singh was killed.
11 Mr Elderhurst received a serious spinal fracture, multiple bruises, and an injured left knee. He was operated on, but required further surgery in 29 July 2011, and may require further surgery in relation to his spine. He suffers continuing pain and lack of mobility, and cannot walk as well as he did prior to the collision. In his Victim Impact Statement, Mr Elderhurst noted that he had suffered a fracture of the thoracic spine, a chest injury, neck pain and stiffness, injury to his left wrist, and had undergone an arthroscopy to his left knee. His car was written off, it having a total value of $60,190, with an insurance replacement value of only $48,860. In his statement dated 1 September 2011 Mr Elderhurst said the psychological trauma of the event was slowly fading, he had started to sleep a little better, could go for a walk, but only with great difficulty, and had only limited movement in his neck, which makes it difficult to drive. His back pain is ongoing, although doctors are hopeful that this problem can be resolved. In his statement he said, unsurprisingly that his quality of life had been greatly diminished, that he found it very difficult to undertake enjoyable activities he had undertaken before, such as fishing with his son. With great kindness, Mr Elderhurst concluded:
“But having said all this, please tell the driver of the other vehicle I have forgiven him and wish him all the best.”
12 You yourself sustained serious injuries from the collision. You were operated upon and hospitalised for some period of time. You have also had an ongoing psychiatric reaction to which I will refer later in greater detail.
13 I now turn to your personal circumstances. You are now 26 years old and were 24 at the time of the offending. You were born in the Punjab province of India, and your parents are farmers. You are the eldest of three brothers, with your two brothers currently studying in India. You completed around Year 10 standard in India, and after leaving school worked briefly with your father on the farm, migrating to Australia under a spousal visa in early 2009, as the family farm was apparently too small to support you as an adult. You came here on a spousal visa with your wife, Gurwinder, via an arranged marriage, she studying here. However, the marriage lasted only two to three years, your wife returning to India and you staying on. You worked on farms and were working as a cleaner at the time of this offending.
14 Your passenger, Gursharan Singh, was one of your closest friends.
15 As a result of the collision you suffered multiple fractures and injuries, including a closed-head injury with loss of consciousness, bilateral subarachnoid haemorrhages, a fractured occipital condyle, a ruptured left eye globe, fractured injuries with bilaterally-fractured jawbones, an open nasal fracture, dental fractures, left lung haemorrhage and contusion, a large left basal pneumothorax, a lacerated spleen, fractures to the fourth, seventh, eighth, ninth and tenth thoracic vertebrae, that is your back, an anterior annular ligament tear at cervical level 4‑5 of your spine, comminuted fractures of the right radius and ulna, fractures to the pelvis, and a right-sided ischaemic infarct.
16 You were treated at the Alfred Hospital where you underwent extensive surgery and were fitted with a halo brace to stabilise the unstable occipital fracture and neck ligaments. You experienced complications of bilateral pulmonary emboli and bilateral lower limb deep-vein thromboses, that is you developed blood clots. At this stage you had no knowledge of what had occurred on the road that day in Coldstream.
17 You were discharged from the Alfred to the Victorian Rehabilitation Centre in Glen Waverley on 20 October 2010, where, according to consultant psychiatrist Richard Barnes, whose reports dated 13 April 2011 and 4 August 2011 were tendered on the plea, you made good progress until you were informed of the circumstances of the collision, the death of your friend, and the likelihood of being charged with serious offences. This occurred when you were visited by police. According to Dr Barnes you subsequently developed a severe depressive disorder with co‑morbid anxiety and features of post-traumatic stress disorder, and became intensely suicidal. This led to psychiatric assessments at the rehabilitation initially, but with a deterioration in your suicidal symptoms you were deemed to be in need of inpatient psychiatric care and were transferred to the Maroondah Hospital Acute Psychiatry Inpatient Unit on 13 December 2010.
18 You were initially admitted as an informal patient, but were soon recommended a bed in the high-dependency unit because of concerns about the high level of suicidal risk and your level of impulsivity. You told those admitting you that you had been looking for sharp objects in the rehabilitation centre to stab yourself. You reported low mood, crying spells, feelings of helplessness and hopelessness about your future, thoughts that your life was over, impaired memory, nightmares and poor sleep. You also reported feelings of numbness, flashbacks, hyperarousal and avoiding any stimuli that reminded you being involved in an accident, and had tried to end your life by removing the screws from your halo brace with the intention of stabbing yourself.
19 After admission to the high-dependency unit you were placed on high levels of anti-depressants, which were increased from those that had been commenced at the rehabilitation unit, together with an anti-psychotic, Olanzapine, which has mood-stabilising properties, and sleep medication. You were given support, and linked with people of your own faith from the Sikh temple in Blackburn, and attended several appointments at the Alfred Hospital for physical follow-up care.
20 You improved, and were discharged as an informal patient to the Carrington Court Supported Residential Service, which is a facility providing accommodation and assistance primarily to the frail and elderly. According to Dr Barnes, your condition slowly improved, although, as he noted, other residents were elderly and infirm, and there were limited opportunities for you to be engaged in age-appropriate activities. You have always been, however, provided with substantial support by the manageress, Rosemary Collins.
21 You continued to struggle with loneliness, obsessive ruminations about the accident, and a sense of responsibility for the death of your close friend. You have a lot of trouble sleeping, and adopted a pattern of spending six to seven hours a day at the Sikh temple in Blackburn developing some supportive relationships there. You remained mildly forgetful and continued to have nightmares, but your suicidal ideation receded.
22 An examination by Dr Barnes on 1 April 2011 showed continued sadness whenever talking of the accident, you stating you found it hard to find hope for the future, but again felt better after talking with your family in India by telephone. You had been thinking about returning to India where at least you would have the emotional support of family and friends. Dr Barnes' prognosis at the time was that your mental state had been slowly improving, but you remaining very vulnerable and at risk of exacerbation of depression and the return of suicidal thinking, or even active suicidal behaviour, in response to the stress of the court experience.
23 In an updated report of 4 August 2011 Dr Barnes reported that during the second half of April, as legal proceedings drew closer, you became very anxious. Your mood dropped, and a review was requested by the manageress. That review revealed a return of suicidal thinking and depression, and inappropriate smiling whilst talking about suicide. Clinicians felt you needed to be readmitted to hospital to manage the risk of deliberate self-harm or suicide, and you were readmitted to the Maroondah Hospital. You remained there from 6 until 31 May 2011. At hospital admission you admitted you had been attempting to strangle yourself with a cable you had been carrying around.
24 You attended court on 20 May 2011 whilst still an inpatient, after which staff on the ward noted some improvement of your mood, and on your discharge the diagnosis was coded as “severe depressive episode without psychotic symptoms, post-traumatic stress disorder and suicidal ideation”. You were discharged back to the Carrington SRS with the support of the Outer East CAT team. You have remained there ever since.
25 By July you were found to be intermittently cheerful, admitting to some low level suicidal thinking, but expressing that you were very keen to return to India.
26 Dr Barnes’ prognosis in August last year was that your mental state had been improving with time, treatment and support, but that you remained very vulnerable and were at risk of exacerbation of your depression and the return of suicidal thinking or active suicidal behaviour, possibly in reaction to the court’s findings, and would need close observation and support and continuance of your medication regardless of the outcome at court. He believed the most beneficial outcome for your mental state that would promote a sustained recovery from your depression, your post-traumatic symptoms and suicidality would be for you to return to India as soon as possible to rejoin your family. He believed that a custodial sentence would make it highly likely that your mental state would considerably deteriorate, and you would suffer a relapse of severe depression. He stated:
“It is my professional opinion, based on the previous course of his illness and his personal reaction to his situation, that if he does experience a relapse of severe depression he is highly likely again to become actively suicidal.”
27 In October 2011 you underwent a neuropsychology assessment by neuropsychologist Louise Vernieux. In her report dated 17 October 2011 she stated that it was extremely difficult to test you, as you quickly became highly agitated, and it became apparent you were unable to continue due to fatigue and anxiety, and the session was terminated. The manageress at Carrington SRS informed Ms Vernieux that she was not at all surprised that this had occurred, and that this reaction was consistent with your level of everyday functioning. I should add it is clear from the reports that Ms Collins has been extraordinarily supportive of you. In her report dated 4 August 2011 she said that your mental state was extremely fragile in the first few weeks of being at the SRS, that you suffered from short-term memory loss from the accident, for example telling the same stories with different endings. She said you were a quietly-spoken young man who knew that you had driven in a stupid and reckless manner, killing your friend as a result, and that you would never forget this. She said you treat all residents and staff with the utmost respect, and helped the elderly co‑residents with simple tasks which are difficult for them. She stated:
“He looks at them as his grandparents and helps them when he can. He listens and speaks to a Greek-speaking lady, sitting quietly talking and listening. All the residents love having him around.”
28 Ms Collins has apparently taken you to her own home for visits, and she noted that in the absence of any family in Australia, the support you get from her, her children, residents and staff at Carrington Court is essentially all the support you do have. She said:
“Sukhwinder is extremely remorseful in regard to his behaviour in driving a vehicle in a reckless manner resulting in causing the death of his friend. He has personally contacted the parents of the deceased young man to apologise and to offer comfort to them.”
29 I also received a letter from the parents of the deceased man stating that they had been in contact with you and had been supportive of you. They stated:
“He has also supported us to settle in our grief. We do not want Sukhwinder Singh to be punished any more and sentenced to gaol in Melbourne. So please let him come back home to India.”
30 Returning to the report of Ms Vernieux, she stated that on what testing she could administer you demonstrated moderately to severely impaired skills in the areas of attention, concentration, working memory, and problem solving. She noted that you were assessed by a neuropsychologist during your rehabilitation prior to the onset of your post-traumatic stress disorder, who noted that your performance on verbal and non-verbal tests of intellectual ability was within the borderline range and at least mildly below your estimated pre-accident level of ability. In general, however, your performance then was far better than that you displayed during her assessment. She said you had suffered a head injury of at least moderate degree, and that you continue to suffer significant psychiatric difficulties as a result of your accident, and are medicated with a number of drugs that affect cognition. She stated:
“Should Sukhwinder receive a gaol term it is my opinion that he would be extremely vulnerable. He lacks the necessary attention and problem-solving skills to deal with the inevitable conflicts and dangers in gaol. This is above and beyond the vulnerability he has related to his physical condition, in which regard I agree with Dr Richard Barnes that his mental state would likely deteriorate and he would be a high suicide risk.”
31 Ms Vernieux also gave evidence on the plea hearing on 30 November of last year, noting that as a result of the accident you had suffered bleeding on the brain, putting pressure on the frontal and top sides of the brain, and had therefore suffered a stroke. She stated that, as a result, part of the brain had died. Ultimately that meant you had suffered a moderate to severe head injury. She said your overall level of intellectual functioning was in the borderline range. She believed that some of your performance in the testing was affected by your psychiatric state and the medication that you took. She believed, however, that your general intellectual functioning was probably intact.
32 She also believed that your severe psychiatric state, together with the medication, may have slowed the recovery of your brain injury, which ordinarily achieves maximum recovery after about two years, the bulk of it occurring within the first six months. In your regards to your capacity within a gaol setting, she said you have a low learning ability, that you would have great difficulty following rules, would have trouble recalling previous conversations, and would cope poorly with retaining information, needing a great deal of repetition to understand instructions, and needing cues to remember what you have been told. She believed you would have enormous difficulty dealing with a gaol structure.
33 Ultimately I sought a report from Justice Health as to the capacity of the gaol to deal with your ongoing physical, psychiatric and cognitive difficulties. I note that you have ongoing neck problems, and continue to wear a brace. I was informed in a very brief report by Larissa Strong, the acting General Director for Justice Health, that she believed a prisoner with the reported medical and psychological conditions that you suffer could access appropriate health services within the Victorian prison system. She did not detail quite how this was to be achieved, and I therefore sought a further report from Forensicare in that regard.
34 In a report dated 5 March 2012, consultant psychiatrist Dr Kevin Ong reported that you continued to be plagued by both back and neck pain, with restricted movements, which prevented you from undertaking much physical activity. You acknowledged ruminating about the death of your friend, and reported diminished appetite and poor sleep, relying on medication such as sedatives to help. You continued to feel guilty over the death of your friend, who you described as being like a brother, and also reported current suicidal ideation, perhaps stabbing yourself with a sharp object, but felt you could not do this because of thoughts of your family. You described yourself as “hopeless and helpless”, had poor concentration, and often had nightmares about your friend.
35 Dr Ong had access to the reports of Dr Barnes, Ms Vernieux and Ms Strong, the neuropsychologist who first tested you. He also had brief telephone conversations with Rosemary Collins, who confirmed that your mood tended to fluctuate, and that you needed encouragement to participate in activities. It was his opinion that as a result of your accident you appear to have sustained an acquired brain injury which has impacted on your ability to sustain attention and concentration as well as short-term memory. He agreed with Ms Vernieux that this was likely to be exacerbated by the combination of your benzodiazepine medication as well as superimposed depressive symptoms.
36 He believed you would meet the criteria for major depression with recurrent episodes as well as post-traumatic stress disorder. He said your post-traumatic stress disorder symptoms were characterised by nightmares and flashbacks re‑experiencing the traumatic event, although you could not recall the event itself, and that is important given that you continue to suffer from amnesia about the event, but nevertheless almost in a contradictory fashion, suffer flashbacks and this was explained by Dr Ong as being perfectly possible.
37 He said you had a sense of foreshortened future and poor sleep. He said the collateral history was supportive of significant mental health difficulties since the accident. Dr Ong stated:
“In light of the above, given Mr Singh’s depressive symptoms, there is likelihood of exacerbation of these symptoms should he receive a custodial sentence. Additionally, his cognitive function entails that he is likely to be more vulnerable to exploitation by other prisoners as well as finding it more difficult to follow direction. I would respectfully submit that any given sentence is likely to weigh more heavily on him compared to a person of normal mental health. There does appear to be a serious risk of imprisonment having a significant adverse effect on Mr Singh’s mental health, particularly in respect to suicidal ideation. This is especially so in the initial phase of incarceration and is likely to lessen over time with appropriate supports.”
38 He believed that, if imprisoned, prison mental-health services should monitor your mental state for any deterioration, and that screening for at-risk prisoners would routinely occur at the reception stage. Dr Ong stated:
“If he is deemed to be at imminent risk of self-harm he is likely to be initially managed in a Muirhead cell which unfortunately is not conducive to a therapeutic environment. Options for Mr Singh within the custodial system would include the acute assessment unit should he be considered a significant risk to himself and others, and even Thomas Embling Hospital, the state forensic psychiatric facility. However, the preference would be to manage him within the prison with appropriate input from peer stabilisers, psychiatric nursing staff, and outpatient reviews by prison psychiatrists. The sentence management should take Mr Singh’s special needs into account in regard to his placement.”
39 When Dr Ong is talking about the preference, I am assuming that he is talking about the preference of the prison authorities. This case presents an enormously difficult sentencing exercise. On the one hand, Mr Singh, you present as a seriously disabled man both physically and mentally. In addition to suffering a wide range of fractures and injuries, you have also sustained an acquired brain injury which affects your concentration and attention and short-term memory. You remain severely depressed.
40 Notwithstanding the assistance that has been given to you since the accident, I am satisfied that the years since the fatal collision have been extraordinarily difficult. You have also suffered a post-traumatic stress syndrome, and undergone the recovery from the very grave injuries you suffered with the assistance only of strangers, however well meaning. You have lived a difficult, limited and lonely life in a senior residential facility not designed for persons of your young age, though I note you appear to have become a well-loved figure in that facility, and also enjoyed considerable support from the manageress, Ms Collins.
41 As against this, and you hardly need reminding of it, your driving on this occasion was extraordinarily dangerous and reckless. It appears from all the reports that you have never been a person who had previously to the accident suffered psychiatric or psychological difficulties, or been a person who engaged in substance abuse. There appears to be no rational explanation for you driving in the way you did on this occasion. There was no evidence of you being under the influence of drugs or alcohol. And yet, the way you drove caused the death of your friend and serious injury to Mr Elderhurst.
42 I am certainly satisfied that Verdins has application to your case insofar as the second limb is concerned relating to prison servitude. I am more than satisfied that a term of imprisonment would be far more onerous for you than a normal prisoner, given your severe psychiatric condition, your impaired neurological functioning, your ongoing physical difficulties, and the loneliness with which you would spend time in gaol, separated from the support of close family and friends in a different culture, and you never having experienced imprisonment previously. I also note that whilst you speak some English you have required the assistance of an interpreter on every occasion that you have attended court, and I find this would also make life in gaol more difficult for you.
43 I accept that you are extremely remorseful for your actions, and indeed you continue to suffer the most profound grief over having caused the death of your close friend, and have also expressed remorse in relation to Mr Elderhurst, having received from you a letter dated 5 August 2011 which you wish to eventually be forwarded to Mr Elderhurst, in which you express remorse and regret.
44 I have the opinions of two psychiatrists and a neuropsychologist that incarceration is likely to lead to an exacerbation of your depressive condition such that you are likely to become actively suicidal. Mr Elderhurst has forgiven you, and the parents of your dead friend wish you to be treated mercifully. The forgiveness of victims is not a determinative factor in any sentencing exercise before the court. Nevertheless it can be taken into account to a limited extent, and I do so.
45 It is the prosecution submission that the only way I can deal with you is by way of a sentence of imprisonment to be immediately served. In making this submission the prosecution relies, of course, on the moral culpability attached to your offending. That is, it was submitted, and I agree, that your moral culpability was high, in that even though you were not affected by drugs or alcohol, the way in which you drove for some considerable period before the fatal collision was extremely reckless and dangerous, and unfortunately it is not surprising at all that it ultimately resulted in a collision and could easily have caused a head-on collision prior to this, given the way in which you overtook several vehicles prior to the collision in conditions which were positively unsafe, where the road was clearly marked to that effect, and where your vision as to oncoming traffic was limited. It is also, in my view, an aggravating factor that you drove without being licensed to do so in Australia, notwithstanding that you did possess an Indian licence.
46 The maximum sentence for dangerous driving causing death is ten years, and the maximum sentence for dangerous driving causing serious injury is five years’ imprisonment.
47 Notwithstanding that you have been charged with dangerous driving causing death rather than culpable driving, I agree with the prosecution submission that your driving on that occasion did represent a serious example of such offending conduct. And, of course, I recognise that the principle of general deterrence generally must be a dominating factor in the sentencing exercise of a court dealing with these charges, that is, a message sent out into the community that driving of this kind will be dealt with most severely by the courts in order to deter others from behaving in the same way.
48 I have given this case much anxious consideration, and indeed the proceedings have been considerably delayed by the acquisition of further reports that I considered necessary.
49 Ultimately, in my view, there are two powerful mitigating sentencing principles that have application in this case that have led me to the conclusion that I should impose a disposition which does not involve you serving any time in prison. They are:
50 Firstly, the extracurial punishment that you have suffered since this offending, and indeed arising from it has been extreme. You suffered appalling physical injuries as a result of this accident. You have then developed a severe post-traumatic stress disorder, together with anxiety and depression. Further, you suffered an acquired brain injury which has impeded your cognitive functioning and continues to do so. You remain severely debilitated two years after this accident. I note the authorities have always recognised that extracurial punishment is a matter that must be taken into account in a mitigatory sense, and can be a most powerful mitigatory factor.
51 Secondly, in my view, the limb of Verdins relating to your capacity to endure a sentence of imprisonment has particular application in this case. Your psychological state, together with the acquired brain injury, in my view renders you almost totally unfit for service of a sentence of imprisonment. In my view this is not merely a case where service of a term of imprisonment would be more onerous for you than other prisoners. I am satisfied you would find it devastatingly difficult, both because of your continuing post-traumatic stress disorder and depression, and also because I am satisfied your impaired cognitive functioning would make it terribly difficult for you to operate within the structure of a prison environment. I am satisfied that the effect of prison upon you could have life-threatening consequences. In addition, you have no family in Australia and would serve any sentence of imprisonment without familial support; a matter that is commonly taken into account in determining the hardship consequent upon a term of imprisonment. Of course, you have pleaded guilty at an early stage, you have indicated remorse, you have no prior convictions so that in my view, the issue of specific deterrence, that is punishment to designed to deter you from behaving in this way in future does not have application in my view, in your case.
52 But in my view, the two factors I have outlined are of such potency that I should not move to impose a term of imprisonment to be immediately served. In my view a term of imprisonment which will be wholly suspended is the appropriate disposition both in marking the severity of your offending and taking into account the mitigatory factors peculiar to your case. I do not believe that a community corrections order on either of the charges would be appropriate, either in terms of marking the severity of your offending conduct or being practically applicable in your case. I do not think you are physically or cognitively capable of carrying out a Community-based Order which would require your continued residence in Australia in any event. I understand that you are on the resolution of this case likely to be deported, and that in my view will be the best outcome for you.
53 Prior to my beginning my sentencing remarks this morning, further evidence was led as to your mental state which has apparently again deteriorated. It would appear that your mental state, from what I can gather over the years in waiting for this case to be finally determined, does tend to deteriorate when a court date is approaching. I heard evidence from psychiatric nurse Julia Therese Maiden who has attended on you from the Carrington Mental Health Service for the past 15 months, that your mental state began to deteriorate probably after the last court hearing, which I adjourned for a further ten weeks in order to obtain a report from Forensicare.
54 You reported lower mood, poor sleep, significant decrease in appetite, your self-care she said, decreased and the Mental Health Area Service was contacted more frequently by Ms Collins in regards to you.
55 Following the assessment by Dr Ong, your psychiatric state decreased significantly such that Ms Maiden attended upon you. You were found to be displaying psychotic features, that is experiencing auditory hallucinations and visual hallucinations at night of your deceased friend outside your mind.
56 You were sleeping extraordinarily badly and were far more distressed than you had been previously. Your medication which is serious medication, that is Olanzapine and Seroquel, Olanzapine being an antipsychotic medication, Seroquel being a particularly potent mood stabilising drug, often used in bipolar and schizophrenic disorders, and your antidepressant Fluoxetine were all increased in dosage. In fact the dosage was doubled.
57 I certainly accept that your depressive features and psychiatric conditions, in particular depression and anxiety have been exacerbated by the drawn out nature of these proceedings. In any event you present before this court in a very fragile psychiatric state, which I accept however, may resolve somewhat once these proceedings have been determined.
58 It was noted in the case of DPP v Buhagiar and Heathcote [1998] 4 VR 540, by the Court of Appeal that a suspended sentence is nevertheless a severe and real response to serious offending, involving as it does the imposition of a sentence of imprisonment notwithstanding that it is then wholly suspended. Yours, in my view, is one of those rare cases, as was stated by the Court of Appeal in the case of Buhagiar by their Honours Batt and Buchanan JJA at p.547 where:
“In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of ... mercy ..."
59 Their Honours went on to say:
" The sole criterion on which the total or partial suspension of a sentence of imprisonment is conditioned is that of desirability in the circumstances ...”
60 Certainly, your circumstances may have been said, "To have excited my sympathy", as was the phrase coined by the Court of Appeal in another judgment. But it is more than simply a matter of my sympathy being excited. It is my view, as I have said, that your physical and psychiatric condition are so very debilitated that for the reasons I have already outlined at some length, it is not appropriate that I proceed to sentence you to a term of imprisonment to be immediately served.
61 I have read the authorities submitted to me by the prosecution, a number of them relating to sentences imposed for the charge of culpable driving, which I note carries a maximum term of 25 years, but it is my view that given the charges you face, and the powerful mitigatory factors that I have referred to, in all the circumstances I should proceed in the way I have outlined.
62 I therefore sentence you as follows.
63 On the charge of dangerous driving causing death you are sentenced to two years’ imprisonment.
64 On the charge of dangerous driving causing serious injury you are sentenced to 12 months’ imprisonment, which sentence I order to be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of three years.
65 I order that this sentence be wholly suspended for a period of three years.
66 What that means Mr Singh, is if you commit any offence in the next three years, you will be brought back before me on breach of suspended sentence, and I will make you serve that three years that I have suspended. It is only in exceptional circumstances that a person who breaches a term of imprisonment by further offending is not made to serve the suspended term.
67 Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to an effective term of three years' imprisonment, and suspended 18 months of that sentence for a period of two years.
68 Yes, thank you. Have a seat.
69 MS MALOBABIC: Your Honour, just a reminder the court must deal with the disqualifications for the licence for at least 18 months, according to s.89 of the Sentencing Act.
70 HER HONOUR: Yes. Pursuant to s.89 of the Sentencing Act you are disqualified from obtaining a licence in Australia for a period of five years. Yes, thank you very much.
71 MS POULTER: As Your Honour pleases.
72 MS MALOBABIC: As Your Honour pleases.
73 HER HONOUR: Yes, everyone is excused. Mr Singh can come out of the dock, I am going to just stay on the Bench. You can all go, thank you very much.
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