Director of Public Prosecutions v Singh, Jaydeep
[2013] VCC 90
•6 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01756
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYDEEP SINGH |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2013 | |
DATE OF SENTENCE: | 6 February 2013 | |
CASE MAY BE CITED AS: | DPP v Singh, Jaydeep | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 90 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Rogers | Office of Public Prosecutions |
| For the Accused | Ms A. M. Stephanides |
HIS HONOUR:
1 Jaydeep Singh, you have pleaded guilty to an indictment charging you with one offence of culpable driving on 8 June of last year. That charge involved you driving both negligently and whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the said motor vehicle. The result was that you were responsible for the death of your friend Gurpreet Singh. The offence is one that carries a maximum term of imprisonment of 20 years and is to be regarded as a serious crime.
2 The prosecution has tendered a written plea opening, which is Exhibit A. That was read out in full this morning. I will not read it again. Suffice it to say that it reveals that one the evening of 8 June of last year you spent some time drinking alcohol in the form of Canadian Club drinks with mixer in the company of friends, which included the victim of your crime. A about 10.30 pm you, with your friends, chose to drive in your vehicle to obtain food. At that time you were the holder of a learner permit only and therefore were aware that you were not an experienced driver. Not too far from your home, whilst driving along Forsyth Road, you were driving at a speed of about 125 kilometres per hour at a time when you were overtaken by another vehicle which had come up behind you quite quickly and had been flashing its headlights, perhaps to indicate that it wanted to overtake.
3 It is not clear to me why it was that when you lost control of your vehicle you were on the wrong side of the road and it is not clear to me precisely how it was you lost control of your vehicle. I raised questions as to the extent to which there was evidence of any correlation between the driving of the vehicle that overtook you and your loss of control of your vehicle. It seems that there is no evidence upon which I can make any firm finding of fact as to precisely how it was you lost control of your vehicle on a straight stretch of road in circumstances where the visibility was good and the road was in good condition.
4
Nevertheless, it is clear that you were driving at a speed well about the speed limit in that area, it being 70 kilometres per hour, and you were driving with alcohol in your body at a concentration that was on any view extremely high and was between 0.178 per cent and 0.198 per cent of alcohol per
100 millilitres of blood.
5 It is clear also, and I think there is no dispute about the facts as set out in the prosecution opening, that at that level of alcohol in your blood you were incapable of having proper control of a motor vehicle. You must have known when you got into your car that night that you had no business to be behind the wheel of a vehicle, that you had had much too much to drink safely to drive that vehicle. That makes it a serious offence because when you embarked upon that journey you were putting not only yourself at risk, not only those within your vehicle at risk, but other innocent road users at risk. And in that condition then to have driven at a speed of 125 kilometres per hour or thereabouts, in a 70 kilometre per hour zone, was a grossly negligent action on your part.
6 Those facts, as I say, are not in dispute and it was in those circumstances that your vehicle left the road and collided with a power pole. The photographs which are Exhibit C on the plea show that the impact was great. Unfortunately the major impact was taken on the near side door pillar and caused the death of your friend and front seat passenger. It was very fortunate that you and others within the vehicle did not also die or at least sustain very serious injury.
7 Turning to matters personal to you, your counsel very helpfully provided me with written submissions which were obviously very carefully thought out and well balanced in their construction and presentation. That is Exhibit 1 on the plea, and I incorporate that exhibit, as I incorporate the prosecution opening, Exhibit A, into these reasons for sentence in their entirety because I have taken into account all of that material.
8
Your counsel also provided me with a copy of a report from a psychologist,
Mr Patrick Newton, dated 29 January 2013. That is Exhibit 2; an affidavit from the father of the deceased dated 16 November of last year; and a letter from your older sister which is Exhibit 4 on the plea. Just dealing with the last two exhibits first, the affidavit of the deceased's father makes it clear that he still has a very high regard for you, regards you as a member of his own family and he forgives you, as does his wife. That is significant in my opinion. He also speaks of your very good character and the fact that you and his deceased son had been the best of friends. Your sister of course might be expected to speak highly of you, and she does. What she stresses is the genuineness of the remorse which you feel for the conduct that led to the death of your friend on 8 June of last year.
9 Indeed, that again is stressed in the report of Mr Newton, to the point where, paraphrasing what he says, you carry a very significant burden of guilt and shame for your conduct and you feel that you have failed a vital character test and have proven yourself to be an inadequate and unworthy individual. You feel, according to Mr Newton, that you have transgressed not only the law but also your own standards regarding good judgment and protection of others. I accept that that has been your response to this conduct, or the result of this conduct on that particular night. I accept that you do bear a genuine burden of guilt and shame and grief for the loss of your friend, and that you carry that burden heavily at the present time.
10 Mr Newton goes on to say that he considers there to be a significant risk of your experiencing more intense depressive symptoms under situations of significant stress and that, of course, is a situation that will inevitably arise during your incarceration for this offending conduct. He certainly foreshadows that it can be expected that there will be a deterioration in your mental and psychological condition following your incarceration. That, of course is something that should be noted and the prison authorities alerted to that risk so that to the extent that the facilities permit that may be addressed during the period of your incarceration.
11 Essentially your counsel presented your case on this plea as being one which recognises that I have a duty to express the denunciation of this court of your conduct, have a duty to punish you appropriately and have a duty to pay proper regard to the principle of general deterrence, that is, deterring others from committing or engaging in conduct of this kind and putting other lives at risk. She quite appropriately acknowledged that those were factors that I had to balance against the points that she sought to make on your behalf which she submits enable me to reduce the sentence below that which might otherwise have been appropriate for this serious criminal conduct.
12
She drew my attention to your background, much of which is set out in
Mr Newton's report, which shows that you are 29 years of age now, born in the Punjab region of India, the only son of three children of a middle-class Sikh family. You had a good upbringing in a strict but fair family, and a good education. You received tertiary and post-graduate qualifications in India. You pursued further education in Australia and obtained a Masters degree in accounting. Unfortunately you have been unable to pursue that career up to now, but no doubt that will come at some stage in the future, subject to you being permitted to remain in Australia.
13 You are obviously an intelligent man and you have no prior convictions, you have had no brush with the law since this unfortunate incident in June of last year. When you returned to India in 2011 you married your wife, an arranged marriage under Sikh custom, which seems thus far to have been successful. Your wife has now come to Australia albeit recently, will stand by you and support you. All of those are factors which will assist your rehabilitation, will assist you to stay out of any sort of trouble in the future, I think it is fair to say that all of the evidence suggests that your prospects of staying out of trouble in the future, being able to put all this behind you, your prospects of rehabilitation in a complete sense are good.
14 Whilst I suppose anybody who has demonstrated such weakness of character as to get behind the wheel of a motor vehicle with as much alcohol in your body as you had on that particular night needs some element of individual deterrence in the sentencing process where the result of that conduct has been as horrific as this has been, I do regard the element of individual deterrence in your case as being less significant by reason of the various factors that I have already tried to illuminate.
15 You have been employed up to now. I think realistically you have taken the view that the proper thing to do was to ensure that your employer was aware of your present circumstances and could make appropriate arrangements to replace you, rather than simply leaving them in the lurch and not doing the right thing. All of which I think is consistent with the character profile that the evidence seems to reveal. To that extent the events of 8 June of last year may be said to be out of character.
16 Unfortunately of course, and this is acknowledged by your counsel, frequently offences of this kind are committed by people of good character, excellent character, with no prior convictions. Whilst in relation to the sentencing for many offences good character plays a significant role in reducing the appropriate sentence I think it is less so in a case such as this where there is such a need for general deterrence for the protection of the public. Nevertheless, it is the case that you are able to pray in aid good character and I do take that into account.
17 You did plead guilty at an early stage, the earliest possible opportunity. That too I think is very much consistent with the remorse that you clearly feel, and it also attracts a discount in sentence for the reason that you have saved the community the cost of a trial, you have facilitated the course of justice and save witnesses having to come along to court and give evidence. And for all those reasons I intend to give you an appropriate discount for your plea of guilty.
18 Your counsel of course stressed the genuineness of your remorse. I think I have already dealt adequately with that, and that seems to be acknowledged on all fronts, including by the parents of the deceased. She also stressed that the forgiveness offered by the family was a matter that was relevant and there is clear case law to support that proposition. Frequently Victim Impact Statements are relied upon by the prosecution, which would tend to point towards an increase rather than a decrease in sentence because of the serious impact that the criminal conduct has upon not just the immediate victim of the offence, but close relatives and so on.
19 Whilst of course the victim here has no opportunity of providing a Victim Impact Statement and it cannot be gainsaid that the consequences for him of course were catastrophic, that has to be balanced against the fact that his parents are apparently so impressed with you in all other respects that they have been prepared to offer this forgiveness which is a significant gesture on their part, and a plea for you to be treated in as lenient a manner as the court can permit.
20 I have already dealt with your prospects of rehabilitation and your counsel stressed what Mr Newton summed up as follows as being reasons which supported the conclusion that your prospects of rehabilitation were good. Firstly, your current involvement with the legal system has been very upsetting and aversive to you, and there is no doubt I think that this will have been an extraordinarily hard lesson for you, quite apart from all the other matters that I have identified, and as hard a lesson as anybody could have in reminding an individual of the importance of avoiding conduct of this kind again.
21 Secondly, Mr Newton points out your profound grief, shame and remorse, the ongoing support of your wife and family and band of close friends, stable history of engagement in work and community activities, lack of signs of antisocial tendencies and other propensities towards acting out or generalised criminal behaviour, and he points out that there are no indications of continuing behavioural pathology that would act as potential criminogenic factors to be precipitate further offending on his part. That would include the fact that you have apparently not used alcohol since this event and have steered clear of motor cars. No doubt there will be times in the future when you will get back to driving a motor car and it may be that you will use alcohol again, but I think it is unlikely that you will use alcohol and motor vehicles in combination again. So Mr Newton suggests that it is unlikely that you would behave like this again and that you would pose a risk to the community in the future.
22 Next your counsel stressed that your mental health arising from the stress that you have felt, the grief and shame that you have felt, and the punishment which you have inflicted upon yourself, arising from those factors consequent upon the death of your friend, all combine to support the proposition that at least your mental health is at risk at the present time. You have shown intense depressive symptoms under situations of stress and, as Mr Newton points out, there is a significant risk of a deterioration in your mental state.
23 There are principles which can reduce the appropriate sentence significantly where a mental impairment exists such as to permit the court to reduce sentence specifically because of mental impairment. It was frankly conceded by your counsel, and I think quite rightly, that the evidence here does not suggest that you fall within the criteria which permit those particular principles to be applied. However, I think it is one of the factors which I need to take into account in determining what the appropriate sentence should be, and I think it is, amongst other factors, one which tends to reduce the sentence that would otherwise be appropriate.
24 It is not just a case, it seems to me, of somebody who is sorry for what they have done. The intensity of your grief and shame is such that what you have inflicted upon yourself does amount in itself to punishment, and I think that is likely to stay with you during the period of your sentence and possibly with you forever.
25 You also are in a situation where you are not yet an Australian citizen, and whilst I am not permitted to speculate as to whether ultimately you may be deported from Australia or whether your wife may not be permitted to remain in Australia, I accept that the uncertainty of your migration status within Australia and that of your wife will play on your mind significantly during the period of your incarceration, and is likely to make the burden of your incarceration greater than would arise if you did not have those issues to deal with. I think your counsel appropriately developed that to the point of identifying that you bear a burden also of responsibility for the hardship that has been inflicted upon your wife in that, she having just arrived in a strange country, you are not going to be there to look after her and be her companion, at least in a direct sense. All of that, I think, will make your time in custody hard to bear.
26 I think it is not irrelevant either that, although you have been in Australia since 2006, there inevitably will be cultural differences which are likely to make serving your sentence more difficult. You are of course separated from your parents, although it is clear that you have the support of your sister and brother-in-law and friends in Australia, as well as your wife. But all of those factors, it seems to me, are factors which need to be taken into account in determining the proper sentence.
27 It was also submitted on your behalf that the fact that the person you killed was a very close friend, akin to a loved on, if you like, was also relevant. I think that is relevant, although it seems to me that that is not a great or very significant factor in reducing sentence. I think it needs to be put into the mix in determining the appropriate sentence and it is a fact that contributes to the grief and the shame that you feel, and the punishment which you continue to inflict upon yourself arising from those factors, and it clearly would exacerbate that sense of grief and shame.
28 It is uncertain the extent to which this conviction will impact upon your professional career. You have qualifications which would enable you, ultimately to practice within the profession of accountancy. They will have a character criterion which you will have to meet, and this will I think make it more difficult for you to meet that criterion. That too, I think, is a relevant consideration.
29 But set against that I have to pay proper heed to the fact that not only are the consequences of your conduct serious, but the offending conduct itself was very serious. There are instances of culpable driving which are more serious than this, but this is nevertheless a serious example. There are two significant aspects to it; your degree of negligence and the degree to which you were affected by alcohol when you got behind the wheel of that car. And it is right that I, as a judge of this court, express the denunciation of this court of conduct of this kind and also punish you appropriately so that others may appreciate that if they engage in conduct of this kind they may expect similar treatment.
30 The prosecution quite properly drew my attention to the serious nature of the offending and the importance of general deterrence. It was submitted by the prosecution that the appropriate range of sentencing fell within the band between six and eight years as an overall sentence, with a non-parole period of - what was it?
31 MS STEPHANIDES: Four to six.
32 HIS HONOUR: Four to six. I queried that from the prosecution, as it seemed in all the circumstances that that was on the high side, and I sought further submissions as to why that was an appropriate range of sentences. I am required to pay regard to current sentencing practice, that is, the practice of the courts in dealing with similar cases, and to ensure that there is a consistency in the approach to sentences. The law requires me to have regard to current sentencing practice.
33 The prosecution drew my attention specifically to the sentencing statistics in a Snapshot which indicates that the range of sentences in recent times has been between two and ten years for offences of this kind, with the mean average for an offence of culpable driving of five years and six months, and the non-parole period being between one year and three months and ten years, with a four year median for the minimum period before which you may become eligible for parole.
34 The courts have equally recognised that every case has to be determined on its own facts. Own facts as to the seriousness of the offending conduct and own facts as to the circumstances personal to each accused. Within the range of available sentences a judge has a discretion as to what the appropriate sentence should be. The learned prosecutor drew my attention to the Court of Appeal decision in the case of Mok v R [2011] VSCA 38, and also to the decision of the Court of Appeal in the case of Yusuf v R. I note though that in Yusuf's case it was a plea of not guilty rather than a plea of guilty. Mok was a plea of guilty. Whilst there are certain similarities, there are also certain differences in the relevant features of each of those cases, between your case and those cases.
35 I would regard this episode of culpable driving as serious and ordinarily one which could fall within the prosecution range of head sentence of six to eight years, but I think that the combination of mitigating factors which have been urged upon me by your counsel do permit me to pass a sentence which is below that range proffered by the prosecution. I think in all the circumstances that I have endeavoured to articulate, that a sentence below that range is appropriate in your particular case.
36 Would you stand, please?
37 For the offence of culpable driving to which you have pleaded guilty I sentence you to imprisonment for a period of five years and I order that you serve a term of three years and four months before you become eligible for parole.
38 But for your plea of guilty I would have sentenced you to a term of seven years' imprisonment with a non-parole period of five years.
39 I order that you be disqualified from driving or holding a driver's licence for a period of four years. Obviously you will be in custody for the greater part of that period, but your disqualification will continue after you have completed your non-parole period. Depending on your immigration status it will not impact, I hope, significantly your ability to gain employment once you are released.
40 Application was made for an order for compensation in favour of PowerCorp Australia Ltd in the sum of $5,142.42. Your counsel indicated that that application was not opposed and I make the order for compensation in that sum in accordance with the draft that was provided to me.
41 Are there any other orders that I need make?
42 MS STEPHANIDES: Pre-sentence detention of one day, Your Honour.
43 HIS HONOUR: Yes, I am sorry. I declare that one day pre-sentence detention be reckoned as time served on the sentence that I have imposed upon you and deducted from the sentence that I have imposed, and that that fact be included in the records of the court.
44 MS ROGERS: There is also the aspect, Your Honour, that Your Honour was going to find that alcohol was part of the offending.
45 HIS HONOUR: Yes, I thought I really had done that in the course of the plea.
46 MS ROGERS: I'm sorry, I'm not sure about whether Your Honour uses a particular form of language for that or not. Or is it just implicit in the remarks?
47 HIS HONOUR: First of all I think it is implicit in the plea. It is implicit in the fact that there has been no challenge to the facts that are contained in the plea opening. Indeed, I think that those facts have been accepted in their entirety, and that they reflect that at the time of the driving, firstly, the accused - the offender had a blood alcohol concentration of between 0.178 and 0.198.
48 MS ROGERS: Yes, Your Honour.
49 HIS HONOUR: And was incapable of properly controlling a motor vehicle.
50 MS ROGERS: Yes, Your Honour.
51 HIS HONOUR: Does that suffice?
52 MS ROGERS: Yes, Your Honour, thank you.
53 HIS HONOUR: All right. I make those findings beyond reasonable doubt.
54 MS ROGERS: Thank you.
55 HIS HONOUR: All right. Thank you. You make take him down. Thank you both for your assistance.
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