Director of Public Prosecutions v Victoria Bhandari

[2011] NSWLC 7

Local Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions v Victoria BHANDARI [2011] NSWLC 7

Decision date:

08 February 2011

Jurisdiction:

Criminal

Before:

Henson DCJ, Chief Magistrate

Decision:

The offender is convicted and sentenced to imprisonment for 10 months and 15 days. The proceedings are adjourned until 22 March 2011. The offender is to be assessed as to her suitability for Home Detention.

In addition and following conviction the offender is disqualified from holding or obtaining a driver's license under the relevant legislation.

Catchwords:

CRIMINAL LAW - negligent driving occasioning death - sentence - question of hardship to third party - importance of general deterrence

Legislation Cited:

Crimes Act 1914 (Cth), s 16A(2) Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 12, 21A
Criminal Case Conferencing Trial Act 2008, s 17
Road Transport (Safety and Traffic Management) Act 1999, s 42(1)

Cases Cited:

Bonsu v R [2009] NSWCCA 316
R v Edwards (1996) 90 A Crim R 510
R v Jurisic (1998) 45 NSWLR 209
R v Taylor [2000] NSWCCA 442
R v Togias [2001] NSWCCA 522
R v Way (2004) 60 NSWLR 168
R v Whyte (2002) 55 NSWLR 252
R v Wirth (1976) 14 SASR 291
R v Zamagias [2002] NSWCCA 17

Category:

Sentence

Parties:

Director of Public Prosecutions
Victoria Bhandari

File Number(s):

2009/231451

JUDGMENT

REMARKS ON SENTENCE

The Facts

1. A comprehensive statement of agreed facts were tendered by the Prosecution and are attached to the Court record. For the sake of these remarks I have condensed them.

1. At approximately 8.45 pm on 3 August 2009 the offender was driving South along Illawarra Road, Marrickville. She had her two children, aged 11 and 5 with her in the car at the time. The offender was familiar with this section of roadway having travelled it on a number of prior occasions. She approached the intersection with Warren Road with the intention of making a right hand turn. The intersection in question is controlled by a number of traffic control lights for the purpose of managing the intersection, including facilitating the passage of pedestrians.

1. Night-time prevailed. There is a suggestion in the facts that visibility at the intersection was, at the time, affected by a level of overshadowing of the intersection from tree foliage reducing the overall effectiveness of lighting in general and that a street light was inoperative. However the prosecution facts establish that these environmental factors were not so significant as to provide any real impediment to the capacity of motorists or pedestrians to observe the passage of either on or through the intersection.

1. The offender stopped at the intersection in obedience to a red traffic light facing her vehicle. The lights turned to green and she began to make a right hand turn. At the same time the lights governing passage of pedestrians across Warren Road changed from red to green. In response to the change Mrs Krsnak, a 76-year-old woman wearing what may be described as neutral clothing under a long grey coat began to cross the road. Her movement from the footpath in conformity with the "walk" sign was observed by a Mr Mustafa. He had brought his vehicle to a stop in Warren Road in response to the red light facing him. He told police he saw the pedestrian walk sign illuminate and Mrs Krsnak leave the footpath. He said she walked past his vehicle and was illuminated in his vehicle headlights.

1. The offender began her right hand turn. Her vehicle came into collision with Mrs Krsnak at a point almost in the centre of Warren Road. There is no issue Mrs Krsnak was entirely within the marked passageway for pedestrians. The offender offered the view that the lights governing passage of pedestrians was red at the time she began her turn and that she had looked to see if there were any about before continuing. In light of the observations of Mr Mustafa this statement by the offender is patently wrong.

1. The front of the offender's vehicle struck Mrs Krsnak at a point closer to the passenger side than the driver's side. Tragically the force of the impact and the continuing passage of the offender's vehicle brought about the death of Mrs Krsnak. It is implicit in the eventual plea of guilty by the offender that her belief regarding the manner in which Mrs Krsnak crossed the road was mistaken and that the tragedy ensued as a result of a failure on her part to keep a proper lookout.

1. Following investigation by police the offender was charged with a series of offences. Following participation in a Case Conference and, I am informed, with the consent of the victim's extended family a more serious charge was withdrawn. As a consequence the offender is before this Court today to be sentenced for the offence of negligent driving causing death, an offence set out in section 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The maximum penalty for this offence is imprisonment for 18 months and/or a fine of $3300. The offence is classified as a serious traffic offence. In addition to any penalty imposed conviction carries an automatic disqualification of license of 3 years with a minimum period of 12 months.

1. As a prosecution brought by the Director of Public Prosecutions before the Downing Centre Local Court the proceedings became subject to the Criminal Case Conferencing Trial Act 2008. This process is intended to enable a more expeditious conclusion to prosecutions through the requirement that the parties participate in a conference intended to resolve the issues between the parties and, where appropriate facilitate an early plea of guilty.

1. The legislation provides for a statutory range of discounts in matters where the offender acknowledges guilt. In these proceedings, despite the inordinate delay in bringing the matter to finality entry of a plea of guilty activates section 17 of the Criminal Case Conferencing Trial Act 2008. Contrary to what would have been the position at common law the offender is entitled to have the ultimate penalty discounted by 25%.

1. In determining penalty the Court is required by section 21A of the Crimes (Sentencing Procedure) Act 1999 to take into account a combination of aggravating factors and mitigating factors when assessing an offender's culpability.

1. I turn firstly to section 21A(2)(g). The offence of negligent driving is an offence set out in section 42(1) of the Road Transport (Safety and Traffic Management) Act 1999. The fact of death is not an element of the offence but a circumstance that elevates the maximum penalty.

1. The solicitor for the Director, when asked whether a Victims' Impact Statement had been prepared informed the Court that such a document had not been compiled but that he was aware members of the extended family of Mrs Krsnak had been devastated by the loss and continue to suffer as a consequence. In such circumstance I am of the view the Court from its own experiences of life can take emotional harm and loss into account where it is satisfied that it is substantial. I am satisfied that in this matter this threshold consideration is established.

1. The loss of human life as a consequence of the commission of an offence is a tragedy to those who rightly value such a life by virtue of their relationship with the deceased. The effect of this offence has been and will likely remain, significant. Despite the familiarity within modern society of the tragic consequences often flowing from motor vehicle accidents the community has not become so inured to such sudden unanticipated loss through accidents as to accept it as a normal vicissitude of life.

1. I have expressed the view elsewhere that the law has no capacity to restore the balance in the lives of those affected by the unexpected loss of a loved one through accidents such as this. Before turning to other considerations the law requires me to take into account on sentence I extend my sincerest sympathies to the victims and their families.

1. In addition to the foregoing circumstance of aggravation I am of the view that section 21A(2)(i) also has application. There is a clear inference arising from the facts and implicit in the plea that this offence was committed without proper regard to public safety. The responsibility attendant upon the holder of a driver's license to exercise it in accordance with the standards of a reasonable and prudent driver demanded that at all material times the offender have proper regard for the presence or potential presence of pedestrians and other motor vehicles that might be at risk of injury or collision.

1. It is clear from the statement of Mr Mustafa that the offender in executing her right hand turn across the intersection and into the path of Mrs Krsnak had a clear and unobstructed view. Failure to see both the green illuminated walk sign and/or Mrs Krsnak can only be put down to a failure to keep a proper lookout. No other explanation is reasonable. I do not accept that minor issues to do with overshadowing by tree foliage or the possible reduction in general lighting suggested by one witness were of such significance as to mitigate the level of negligence. Such a failure on the part of the offender places the negligence towards the higher end of the objective seriousness.

1. Having dealt with the aggravating factors I turn to those I am required to consider in mitigation of penalty.

1. I have already dealt with the approach to be taken in relation to a plea of guilty and the reasons why the statutory scheme is applicable. It is not necessary to further consider the impact of the plea of guilty.

1. Section 21A(3) lists the mitigating factors a court is required to take into account in determining the appropriate sentence. For the record I am satisfied that section 21A(3) (b), (d), (e), (f) (g) (h) are all applicable in the offender's favour to mitigate the penalty. The mitigating fact of the plea of guilty has been addressed elsewhere and need not be further considered under section 21A(3)(k). Given the comments at page 2 of the Pre Sentence Report under the heading "Attitude to the Offence" the offender cannot in my view establish contrition and remorse sufficient to further mitigate the penalty.

Subjective Factors

1. The offender comes before this court at the age of 35. She has no criminal record. Her record as a licensed driver is almost exemplary. As at the date of the accident she had held a driver's license for 15 years. Only one matter is recorded against her. That was in 2002 for exceeding the speed limit.

1. It is clear from the offender's lack of antecedents and the content of the pre sentence report that she is a person of good character. This type of offence as demonstrated by analogy with the Court of Criminal Appeal decision in R v Jurisic (1998) 45 NSWLR 209 is typically committed by people of otherwise good character with no or limited prior convictions. I am required to give weight to the offender's prior good character and I do so. It is important both on its own and in the context of considering the prospects of rehabilitation and the likelihood of re-offending. In the somewhat speculative task courts assign to themselves in this regard I accept she is someone who will learn from this tragic experience to be more vigilant and in so doing be unlikely to re-offend.

1. The Pre Sentence report discloses that she migrated to Australia with her parents as a baby. She is the eldest of 5 children. Her youngest brother passed away at 11 years due to complications associated with a genetic syndrome. She was married in 1997 and is responsible for the care of 2 children. One of her children, aged 12 acquired the same genetic disorder as that which resulted in her brother's death at an early age. The consequences of this situation are important in the context of hardship to third parties arising out of sentence. I will return to them at an appropriate time.

1. The offender's husband later left the marriage. It would appear that a driving force behind the separation was his inability to cope with the care needs of his disabled son. Although he provides some assistance with the care of the younger son of the relationship the offender is left to care for her severely disabled son on her own.

1. The offender herself is not without medical difficulties. In February 2007 she suffered a right cerebrovascular accident or stroke. She also suffers from hypertension, diabetes mellitis and migraine. As a result of suffering the stroke she was required to undergo a driving assessment by the Roads and Traffic Authority. In a report dated 30 th May 2007 the offender was assessed as fit to retain her then current license. The apparent trouble free nature of her driving record since that suggests the decision was an informed and reasonable decision.

The sentence

1. As indicated earlier the degree of negligence associated with the commission of this offence places it at the higher end of offences of this nature. Even allowing for the strong subjective circumstances personal to the offender and the factors that mitigate penalty the Court cannot ignore that finding or the impact of the offence. In Bonsu v R [2009] NSWCCA 316 in a single judge decision Howie J expressed the view at [19] that " little regard or insufficient regard is being paid in the Local Court or the District Court on appeal to the fact that the offender being sentenced has caused the loss of life and at [24] " that the range of penalties being imposed, at least in the Local Court, is inadequate".

1. It is appropriate to consider these observations against a background of other similar remarks made in the Court of Criminal Appeal in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 to the effect that general deterrence is paramount and courts must tread cautiously in showing lenience for good character in such cases. The need for proper consideration of general deterrence is also reflected in legislative changes to increase the penalty for this offence.

1. The penalty provisions were amended in 1998 to increase the term of imprisonment and maximum amount of court fines. The maximum term of imprisonment has increased in recent years from 6 months to 12 months to 18 months. The consequences of increased penalties was considered in R v Way (2004) 60 NSWLR 168 at [52] wherein the court said, inter alia:

"Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum. The courts are expected to recognize and reflect that intention when sentencing offenders for offences after such amendments are made."

1. Taking all relevant considerations into account I come to the view that the sentence to be imposed in this matter must be one that emphasises general deterrence. That is the approach commended at the second reading speech at the time the penalty for this offence was introduced in 1998. It is the approach generally adopted in relation to driving offences where death or serious injury occurs.

1. Protection of the community is the fundamental obligation of the Courts in the exercise of their criminal jurisdiction. General deterrence is an important objective in pursuit of that ultimate objective. Mindful as I am of the admonition contained within section 5 of the Crimes (Sentencing Procedure) Act 1999 the foregoing factors persuade the Court that there is no other appropriate sentence that adequately addresses the purposes of sentencing and the objective seriousness of the offending than a sentence of imprisonment.

1. The appropriate sentence for a level of offending towards the higher end of the range is 14 months. Applying the statutory discount of 25% the offender is convicted and sentenced to imprisonment for a period of 10 months and 15 days. I now turn to the primary submission by counsel for the offender.

Hardship to Third Parties

1. Counsel conceded in submissions that the starting point on sentence was likely to be imprisonment. His focus thereafter was on the subjective circumstances personal to the offender and the impact any sentence might have on third parties.

1. I have already addressed some of the subjective circumstances. It is obvious that any decision by a court to send a single mother of two young children to prison will inevitably cause hardship. When the offender herself also suffers from medical problems the impact of imprisonment broadens. Neither or both of these circumstances are sufficient to warrant a different penalty. The issue is whether the circumstances are sufficient to alter the manner in which a sentence is to be served.

1. The law is well settled. For the impact of a sentence of imprisonment to warrant amelioration the impact must be exceptional.

1. A classic statement of the approach to be taken by Courts when the issue of hardship to third parties is raised is set out in R v Wirth (1976) 14 SASR 291 at 295-6 where the court said:

"Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. .......It seems to me that courts would often do less than their clear duty - especially where the element of retribution, deterrence, or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. ......For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgement, courts should not go."

1. This approach is mirrored in R v Edwards (1996) 90 A Crim R 510:

"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full time imprisonment.

Whilst so called floodgates arguments are often, and rightly, met with judicial scepticism, the practical consequences of an argument that a sentencing judge or magistrate should deal leniently with an offender because of the effect which punishment of the offender will have upon some third party are such that the courts have approached this subject with caution."

1. In Edwards the offender convicted of manslaughter had been sentenced to Periodic Detention after the Judge at first instance found that the degree of hardship to a third party was exceptional. In that matter evidence was led that the offender provided 15 hours a week personal care to a 61 year old institutionalised, intellectually and physically handicapped man with a predisposition to violence and that she had managed to provide a high standard of care to him for some years against a background of failure on the part of her predecessors.

1. In determining the Crown appeal against a sentence of Periodic Detention [and finding the sentence manifestly lenient] the Court noted the objective seriousness of the offence and upheld the appeal substituting a term of full time imprisonment and thereafter took into account the circumstances as a basis for varying the relationship between the head sentence and the non-parole period.

1. Although the sentencing was being considered under Commonwealth legislation where section 16A(2)(p) of the Crimes Act 1914 required hardship to third parties to be considered guidance is also drawn from the lengthy review of authority took place within the judgment of Grove J in R v Togias [2001] NSWCCA 522. At [80] Grove J cited an extract from 'Sentencing: State and Federal Law in Victoria' 2 nd ed (1999) where it was said:

"The circumstances may be regarded as exceptional if the imprisonment of a parent leaves a child without parental care, if a dependant will suffer overwhelming hardship because of the imprisonment of the offender,....Where all the features of the case point to a custodial sentence and there is evidence of extreme hardship, a court may take into account the extraordinary features of the case by suspending the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased."

1. It is pertinent to note that the objective seriousness of the offences for which the offenders were sentenced in the matters cited above are regarded by the various legislatures as objectively more serious than the offence before me, even allowing for the fact of loss of a human life in these proceedings. This reality is not determinative. In my view however, it is of relevance.

1. The factors to be considered in these proceedings relate to the relationship between the offender and one of her sons. At the outset it should be stated that were the relationship an "ordinary" one of mother and son without exceptional complication the fact of that situation would not justify the court departing from an outcome consistent with full time imprisonment.

1. Earlier I referred briefly to the unfortunate circumstances relative to one of the offender's children, E. Her eldest son has what a report from the Children's Hospital at Westmead describes as "severe intellectual disability secondary to an x linked mental retardation." The conditions are described in the Lifestart Counsellors report as MECP2 (diagnosed by Dr. Kirk, Clinical Geneticist Sydney Children's Hospital) and severe developmental disability (diagnosed by Dr. Blundell, Paediatric Registrar and Kerry Baker, Psychologist Disability Specialised Unit Ageing).

1. It is clear from the various reports that E "has significant and severe disabilities and requires high levels of support from both his immediate family and professionals. [E] is non verbal, experiences difficulty maintaining his balance, is dependent for all self care tasks and requires constant supervision for his own safety." The offender attends to his personal hygiene and toileting tasks.

1. The case manager further states: "Ms Bhandari is [E's] sole carer and completes all of [E's] care needs in the home. She is also actively involved in supporting his teachers and aides at Cairnsfoot Special School. This support is best carried out by a familiar person with whom [E] is comfortable."

1. There is little doubt that given the abandonment of E by his father, grave difficulties would be encountered in identifying and providing round the clock care of an essentially incapable child. The consequences would appear to be more serious in light of the pattern within the various reports tendered to the effect that the mother son bond is such an important part of even low level functioning on the part of E that the absence of his mother is likely to result in behavioural decline with unpredictable longer-term consequences.

1. The reports demonstrate a long journey with constant high-level support from the offender and the use of a variety of medications to bring the child to the point he has reached in his thus far unfortunate life. He has reached a point where the Developmental Paediatrician assesses his behaviour as having improved from a scale of 8-9/10 [10 being worst case] to 4-5/10. Common sense establishes that part of the reason for the improvement in mid 2010 is the product of a more effective use of medication coupled with the ongoing commitment for care by the offender.

1. On balance, taking the foregoing factors into account I come to the view they are so outside the normal travails in life that they come within the umbrella of exceptional such that the Court must take the impact of imprisonment into account on penalty.

1. This does not mean however that imprisonment is no longer appropriate or an option. That is not my understanding of the law. Hardship to a third party does not relieve a sentencing court of the need to pay due regard to the purposes of sentencing set out in section 3A. Exceptional hardship to a third party is not a finding that leads necessarily to a change in the sentence outcome save to the extent of its impact on the third party. As observed in the comments of Grove J. above in his citation of the Victorian text - it may lead to a number of outcomes including the suspension of a sentence or an alternative and less restrict form of condign punishment.

1. I have considered the views expressed in R v Zamagias [2002] NSWCCA 17. Having determined to impose a sentence of imprisonment having found exceptional hardship to a third party the final balancing exercise for the Court is to consider whether it should suspend the identified sentence pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 or apply an alternative form of sentence.

1. In matters of this nature general deterrence is paramount. With this in mind I have had regard to the observation by Wood J. In R v Taylor [2000] NSWCCA 442 at [49] that "suspended sentences provide very little, if anything by way of general deterrence."

1. On balance the competing circumstances between the purposes of sentencing and hardship to a third party can be properly met by a sentence of Home Detention. Such a sentence would in my view address both issues whilst at the same time enabling the provision of continuing care for the offender's severely disabled son.

Formal Orders

1. The offender is convicted and sentenced to imprisonment for 10 months and 15 days. The proceedings are adjourned until 22 March 2011. The offender is to be assessed as to her suitability for Home Detention.

1. In addition and following conviction the offender is disqualified from holding or obtaining a driver's license under the relevant legislation. No submissions were put to the court on this issue. Consequently the Court is relieved of any need to consider a period of disqualification less than the automatic period provided for under the Act. The offender is disqualified forthwith for the automatic period of 3 years.

Judge Graeme Henson

Chief Magistrate

8 February 2011

Decision last updated: 05 May 2011