DPP v Chhatre

[2014] VSCA 280

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0183

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
PURUSHOTTAM DINKAR CHHATRE	Respondent

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JUDGES:	WEINBERG, WHELAN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2014
DATE OF JUDGMENT:	11 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 280
JUDGMENT APPEALED FROM:	DPP v Chhatre [2014] VCC 1189 (Judge Hogan)

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CRIMINAL LAW – Sentence – Director’s appeal – Failing to stop and failing to render assistance – Invalid sentence imposed – Re-sentenced – Karazisis (2010) 31 VR 634 applied – Offender’s circumstances most unusual – Non-custodial sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms S M K Borg	Office of Public Prosecutions
For the Respondent	Mr D Grace QC with Ms C A Boston	Melasecca Kelly Zayler

WEINBERG JA:

1. I will invite Whelan JA to deliver the first judgment in this matter.

WHELAN JA:

1. On 22 July 2014, the respondent, Mr Chhatre, pleaded guilty to one charge of failing to stop after an accident, and one charge of failing to render assistance after an accident.  A judge in the County Court heard a plea that day, and on 25 July 2014 she sentenced the respondent as follows:

Charges on Indictment	Offence		Maximum	Sentence
1	Failing to Stop after an Accident [s 61(3) of the Road Safety Act 1986]		10 years	3 months’ imprisonment wholly  suspended  for 2 years
2	Failing to Render Assistance after an Accident [s 61(3) of the Road Safety Act 1986]		10 years	2 year community correction order with the following terms: ·     200 hours of community work; ·     Mental health assessment and treatment; ·     Supervision, monitoring and managing as directed by the Secretary.
Total Effective Sentence:		3 months’ imprisonment wholly suspended for 2 years. 2 year community correction order with the following terms: ·     200 hours of community work; ·     Mental health assessment and treatment; ·     Supervision, monitoring and managing as directed by the Secretary.

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	nil
6AAA Statement:  Had it not been for the respondent’s pleas of guilty her Honour would have sentenced him to a term of imprisonment of two years with a non-parole period of one year.
Other relevant orders:  All licences and permits held cancelled and disqualification from obtaining another licence or permit for 4 years from the date of sentence.

1. The material relied upon on the plea was extensive.  The sentencing judge’s reasons were full and detailed.[1] She made a mistake in the sentence she imposed, however. It seems that, notwithstanding the respondent was represented by an experienced solicitor and that senior counsel appeared on behalf of the Director of Public Prosecutions, the error was not pointed out to her Honour. Pursuant to s 44(1)(a) of the Sentencing Act1991, as it then stood, the sentencing judge could not impose a sentence of imprisonment which was suspended, as well as a community correction order. 

   [1]DPPv Chhatre [2014] VCC 1189.

2. The Director of Public Prosecutions appeals the sentence imposed on two grounds: first, that the sentence is invalid as being contrary to s 44(1)(a) of the Sentencing Act as it then stood;   secondly, that the individual sentences and the total effective sentence are manifestly inadequate.  It is the joint position of both the appellant and the respondent that the sentence imposed was invalid, and that the appeal must be allowed.

3. The sentencing discretion is re-opened and this Court must now impose a different sentence pursuant to ss 289 and 290 of the Criminal Procedure Act2009.

4. I turn, then, to the sentence which now ought to be imposed.  I have read the transcript of the plea and the exhibits tendered before the sentencing judge.  On the appeal, additional material was relied upon on the respondent’s behalf, being a report of a psychologist, Khorshed Khisty.

5. Of further relevance since sentence, is the passage of the Sentencing Amendment (Emergency Workers) Act2014, which both parties submitted applies to the re-sentencing exercise we must undertake. 

   Circumstances of the offences

6. The circumstances of the offences were set out in a written Crown opening which was tendered on the plea.  On 9 August 2013 at approximately 10.00 pm, Mr Chhatre was driving his motor vehicle in a northerly direction along Forest Road, Forest Hill.  He struck a pedestrian who was walking more or less in the middle of the road  and in the same direction as he was travelling.  The pedestrian was wearing dark clothing and he was significantly intoxicated.  Subsequent toxicology analysis revealed that his blood alcohol reading was .27 and that he had been using cannabis.  The pedestrian suffered fatal injuries.

7. Up to that point Mr Chhatre had done nothing wrong.  There is no allegation that there was anything untoward about his driving and there is no allegation that he was under the influence of an intoxicant.  He had an unblemished record, with not only an absence of prior convictions but also an absence of any recorded driving offences for which he would have lost demerit points at all. 

8. The road surface was dry and the speed limit was 50 km per hour.  There were no faults in Mr Chhatre’s motor vehicle.

9. On the material before the sentencing judge, and before this Court, it seems that the only explanation for the accident is the conduct of the deceased pedestrian  in walking up the middle of the road at night in the circumstances in which he did.

10. Whilst up to the point of collision Mr Chhatre had done nothing wrong, he then did a most reprehensible thing.  He did not stop.  He did not render assistance.  He left the scene and returned home.

11. The accident was witnessed by bystanders and broken pieces of Mr Chhatre’s motor vehicle were left at the scene.  Mr Chhatre took steps to prevent discovery of the fact that he had been the driver who had hit the deceased pedestrian.  He took his motor vehicle to a friend’s place and told him an untrue story as to why it was damaged.  He removed damaged parts of his motor vehicle.

12. Two days after the accident, on Sunday 11 August 2013, he confided to his wife that he had hit a pedestrian who he had not seen because he was dressed in black.

13. The next day, after the police contacted the friend at whose house he had secreted the vehicle, he attended the friend’s house, met the police and was arrested.  When interviewed by police he maintained, in contrast to what he had told his wife, that whilst he knew he had hit something he did not realise he had hit a person.

14. Psychiatric evidence was led on the plea to the effect that it was possible that he, in some way, suppressed the conscious knowledge that it was a person he had hit, and that that conscious realisation had then emerged over time.  The sentencing judge could not accept that explanation.  Neither do I.

15. On the appeal, counsel for Mr Chhatre submitted that the events which had occurred after the offence, his secreting of the vehicle and his reluctance to accept that he knew he had hit a person reflected no credit on him, and were part of the assessment of his remorse but were not, on proper analysis, aggravating features of the offences themselves as the commission of those offences had been completed before those circumstances occurred.  I accept that.

    Matters revealed on the plea

16. The material put before the sentencing judge on the plea, which I have reviewed, was exceptional in a number of respects.  They were:

    1.Evidence that Mr Chhatre is truly and deeply remorseful, was unusually cogent and compelling.  The extent of his personal distress and self-reproach is considerable.  This emerged from the evidence of psychiatrist Dr Adam Deacon and psychologist Mr Bernard Healey (who has both treated Mr Chhatre and prepared medico-legal reports), a diary which Mr Chhatre has kept, and statements and evidence given by a large number of family and friends.

    2.The high regard in which Mr Chhatre is held, both within his own Indian Hindu community and more generally, is quite exceptional.  It is clear that he is a very hard working, sincere, family-oriented person who, before the night of this tragic event, had always conducted himself as a responsible, respectful and reliable member of his family, his religious community and the broader community.  His solicitor, on the plea, had proposed to tender approximately 125 references and to call approximately 24 character witnesses.  With the encouragement of the sentencing judge, he eventually confined himself to the tender of 11 references;  six of those referees were called to give evidence at the hearing.

    3.Mr Chhatre’s previous driving record is exemplary.

17. Mr Chhatre was born in India in 1971.  He came to Australia in 1993.  He has a Bachelor of Engineering degree.  He has always been employed, and currently has a responsible position in a manufacturing enterprise.  He married his wife, who is also of an Indian background, in 2001 and they have two young daughters.

18. Mr Chhatre has brought his parents to Australia from India, and they live with him and his family.  His wife works, but the extended family is, to a large extent, dependent on him.  He has been subjected to some personal trauma during his life.  As a young boy in India he was kidnapped, and he and his wife have suffered the loss of a baby.

19. Mr Chhatre has involved himself in a good deal of voluntary work, both before and after he committed the offences.  He is a highly respected member of the Indian community, known as a person who is both helpful and generous.

20. In addition to the character evidence given on the plea, evidence was also given by a psychiatrist and a psychologist, to whom I have referred, Dr Deacon and Mr Healey.  In substance, they both express the opinion that he does not suffer from any mental illness but that he has suffered and is continuing to suffer deep distress and considerable self-reproach as a result of his conduct on the night.

21. A Victim Impact Statement was tendered from the brother of the deceased pedestrian.  The deceased brother was his closest relative.  It is clear from the Victim Impact Statement that the deceased’s brother was devastated by his brother’s death and that dealing with his death took a very significant emotional toll on him.

22. Mr Chhatre wrote a letter expressing his remorse and distress at what had occurred to the persons he described as the ‘family and friends’ of the deceased approximately two weeks after the incident.  His solicitor forwarded that letter to the prosecution.  Unfortunately his solicitor repeated the assertion in public that Mr Chhatre had not known he had hit a person, and that is a matter which caused the deceased’s brother distress.

    Developments since sentence

23. One of the persons who gave character evidence on behalf of Mr Chhatre at the plea was Khorshed Khisty.  In a report dated 7 November 2014, Ms Khisty advises that since the sentence she has agreed to see Mr Chhatre professionally.  She describes his current condition and indicates that he continues to suffer from acute anxiety as a consequence of the incident and its aftermath.  She also expresses concerns in relation to the stress that his wife has been placed under.  The report does not significantly alter the position as it was at the time of sentence, as was submitted by counsel for the appellant.

24. As to Mr Chhatre’s compliance with, and his progress under, the community correction  order, he has completed 166 hours of his 200 hours of community work, and has otherwise fully complied with the conditions of the order.

25. Since the sentence, the Victorian Parliament has enacted relevant new provisions in the Sentencing Act1991 (the ‘Act’) by the Sentencing Amendment (Emergency Workers) Act2014 (the ‘2014 Act’).  Relevantly, the 2014 Act imposes an obligation on a court not to impose a sentence that involves confinement of the offender, unless the purposes for which the sentence is imposed cannot be achieved by a community correction order (new s 5(4C));  and provides that a community correction order may be imposed as the appropriate sentence where, before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended in whole that sentence of imprisonment (new s 36(2)).

26. In the second reading speech in relation to the bill which introduced the 2014 Act, the Attorney-General emphasised the importance of community correction orders and, in particular, emphasised that the new provisions were intended to highlight their flexibility and suitability as a means of addressing offending in appropriate cases.[2]  He observed that while, theoretically, a suspended sentence was treated as more serious, the reality was that complying with a community correction order is more onerous, and that it betters the community.[3]

    [2]Victoria, Parliamentary Debates, House of Assembly, 26 June 2014, 2398 (Robert Clark, Attorney-General).

    [3]Ibid.

    Submissions on the appeal

27. On behalf of the appellant, it was submitted that these offences were so serious that an immediate term of imprisonment must be imposed.  In that respect, the appellant relied upon the decisions of this Court in Nguyen v The Queen,[4] Wassef v The Queen,[5] R v Harding,[6] R v Mohamed,[7] Tang v The Queen,[8] Miller v The Queen,[9] DPP v Josefski[10] and Pollard v The Queen.[11]  Counsel for the appellant frankly conceded that only the case of Mohamed was truly comparable to the position here. 

    [4][2014] VSCA 53.

    [5][2011] VSCA 30 (‘Wassef’).

    [6][2008] VSCA 124.

    [7][2009] VSCA 158 (‘Mohamed’).

    [8][2013] VSCA 31.

    [9][2012] VSCA 265.

    [10](2005) 13 VR 85.

    [11][2010] VSCA 156.

28. When the maximum penalty for failing to stop after an accident was significantly increased from 1 June 2005, the Minister for Transport, in explaining the increased penalty in a passage quoted in full by this Court in Wassef,[12] referred to the fact that the increased maximum penalty would

    help to ensure that a person who suspects that he or she may be charged with one or other of these offences (for example, because he or she is affected by alcohol or illegal drugs when the accident occurs) will no longer have an incentive to escape from the scene.[13]

    [12][2011] VSCA 30 [26].

    [13]Victoria, Parliamentary Debates, Legislative Assembly, 5 May 2005, 942–3.

29. Incentives to escape from the scene are not confined, of course, to a concern about drugs or alcohol.  Such concerns may also arise out of the commission of driving offences, the fact that the driver is unlicensed, or the fact that the driver has a poor driving record.

30. Counsel for the appellant fairly conceded that none of those incentives in fact existed here, although she submitted that Mr Chhatre’s behaviour in the days after the commission of the offences reveals a perception on his part that he had something to fear.  I accept that.  But it remains significant that in fact he had done nothing wrong and had nothing to fear before he made the decision not to stop and to drive away.

31. Counsel for the appellant particularly relied upon the decision in Mohamed and upon the fact that in that case a custodial sentence, albeit effectively ‘time served’ by the time of the appeal, had been imposed.  So much may be accepted.  This Court in Mohamed did emphasise, however, that the circumstances surrounding the commission of these offences will vary greatly.  The explanation for the departure from the scene in Mohamed was a more compelling one than what was proffered here.  On the other hand, whilst Mohamed also had no prior convictions, the unusually powerful mitigating material in relation to Mr Chhatre does not seem to have been present in that case.

32. On behalf of the respondent, it was submitted that the comparable cases relied upon by the prosecution were not in fact comparable at all as, with the exception of Mohamed, none of them involved circumstances such as those which existed here;  namely that the offender had left the scene in circumstances where he had not committed any driving offence, was unaffected by alcohol or drugs, had no reason to be concerned in relation to his prior driving history, and could not be said to be motivated by any of the kinds of ‘incentives’ which had resulted in the imposition of the significant maximum penalty for this offence.

33. It was submitted that, given Mr Chhatre’s early guilty plea, his genuine remorse, his exemplary previous character, and his excellent prospects of rehabilitation, this was an appropriate case for the imposition of a community correction order on both offences.  It was submitted that this case represented precisely the kind of circumstance referred to by the Attorney-General very recently in his speech introducing the new provisions, and that a community correction order would in fact be a more appropriate sentence on count 1, and a more onerous sentence than a suspended sentence.  

34. Counsel for Mr Chhatre relied upon the principles set out by this Court in DPP v Karazisis concerning the imposition of a custodial sentence on appeal after a non-custodial sentence had been imposed by the sentencing judge.[14]

    [14](2010) 31 VR 634 (‘Karazisis’).

35. Counsel for the appellant accepted that, as a practical matter in Mr Chhatre’s particular circumstances, a community correction order was more burdensome than a suspended sentence.

    Disposition

36. These offences were serious.  It is a most reprehensible thing to leave an injured pedestrian on the road and to drive away.  As is almost invariably the case when an offender flees the scene, it is suggested that the flight was motivated by ‘panic’.  In my view, as counsel for the appellant submitted, in this case Mr Chhatre made a decision to place his own interests above that of the person with whom he had collided.  Typically, however, in cases of this kind the offender has a cogent reason to flee;  the offender’s driving, intoxication or prior record are usually such that the offender has legitimate reason to be concerned that apprehension will result in serious consequences.

37. This case is unusual, albeit not unique, in that those features are not present.  The case is also unusual because the offender here was, before this incident, a person of truly unblemished character and reputation.

38. The authorities relied upon by the prosecution do suggest that, ordinarily, offences of this kind must result in a term of imprisonment, but that is not to say that there can never be a case where a non-custodial disposition is appropriate, and counsel for the appellant accepted that. 

39. It is particularly important in this case that when an offender has been given a non-custodial sentence and has complied with its terms for a significant period there can be powerful reasons why a custodial sentence should not then be imposed on appeal.[15]  The substantial completion of an order imposing burdensome conditions upon an offender, is a matter to be accorded considerable weight in this respect.[16]

    [15]Ibid 658 [107]; DPP v Edwards [2012] VSCA 293 [132].

    [16]Karazisis (2010) 31 VR 634, 659 [112].

40. Further, it is the case here that the unusual level of distress experienced by this offender continues, and that the uncertainty necessarily inherent in an appeal is a factor in that continued distress.

41. On the other hand, a disposition which, in effect, would produce an outcome where the penalty imposed after appeal is less burdensome than that imposed by the sentencing judge, as would be the effect of imposing a second community correction order on the same terms as the first, is also inappropriate in my view.

42. Mr Chhatre should remain on the community correction order which has already been imposed on him on charge 2.  It is necessary for an additional penalty to be imposed on charge 1, and that cannot be a suspended sentence.  In the circumstances here, in my view a custodial disposition is also inappropriate.  The only appropriate option is a fine.

1. I would not consider a fine to be ordinarily within the range of available

penalties for an offence of this kind, but in the circumstances of this case, and particularly the fact that Mr Chhatre ought to continue on the community correction order already imposed and ought not to be given a custodial disposition after having received a non-custodial sentence and having complied with its terms for a significant period, a fine is the most appropriate additional penalty.

1. The sentence on charge 1 should be set aside, and a fine of $5,000 imposed.  The sentence on charge 2 should be affirmed.  Otherwise, the orders made by her Honour should be affirmed.

2. To the extent that it is necessary to make a statement pursuant to 6AAA of the Sentencing Act 1991, but for the plea of guilty, I would have sentenced the respondent to a term of imprisonment of 2 years, with a non-parole period of 1 year.

WEINBERG JA:

1. I agree.

SANTAMARIA JA:

1. I also agree.

WEINBERG JA:

1. The orders of the court are as follows:

   (1)       The appeal by the Director of Public Prosecutions is allowed.

   (2)The sentence of three months’ imprisonment, wholly suspended for two years on charge 1 is quashed.

   (3)       In lieu thereof, the respondent is sentenced to a fine of $5,000.

(4)The sentence of a community correction order for 2 years on charge 2 is affirmed.

(5)       All other ancillary orders are confirmed. 

(6)Payment of the fine of $5,000 is stayed for three months from this day.

Under other matters, the Court will grant to the respondent an Indemnity Certificate pursuant to s 15 of the Appeals Cost Act 1998.

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