DPP v Nasser

[2020] VCC 1660

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01431

DIRECTOR OF PUBLIC PROSECUTIONS

v

NASUHA NASSER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2019, 5 September 2019, 4 December 2019 and 17 September 2020
DATE OF SENTENCE:	21 September 2020
CASE MAY BE CITED AS:	DPP v Nasser
MEDIUM NEUTRAL CITATION:	[2020] VCC 1660

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecution
For the Accused	Ms R. Shann	Galbally Parker Barristers and Solicitors

HIS HONOUR:

1Nasuha Nasser, you have pleaded guilty to one charge of dangerous driving causing death and two charges of dangerous driving causing serious injury.

2Those charges arise from the death and serious injuries sustained by your passengers when on 24 November 2018 the car you were driving collided with another car at the intersection of Madden Road and Remembrance Drive, Cardigan. Cardigan is a township just west of Ballarat.

3On 17 September 2020 I granted your second application indicating that I would not impose immediate imprisonment should you plead guilty to the charges. Because the offence of dangerous driving causing death is a category 2 offence, I would have been required to impose a period of imprisonment unless certain criteria set out in s 5(2H) of the Sentencing Act were made out.

4Accordingly, much of the sentence indication hearing and my decision concentrated on those statutory criteria. I will refer to and repeat some of what I said in my reasons for granting the sentence indication. However, these more complex legal concerns ought not overwhelm what is in simply terms a dreadful human tragedy.

5Ms Gwyneth Lok was only 20 years old when she died as a consequence of the motor vehicle collision on 24 November 2018. She was described by her loving family as a bubbly, independent, intelligent young woman who had a positive impact on all she came in contact with. She had a bright future.
Her death caused deep and enduring grief to her parents, her brother and her many friends.

6Ms Lok was a good friend of yours, Ms Nasser. She came to Australia on
22 November 2018 to visit and holiday with another friend here in Melbourne, as well as with you and your twin sister. You and your twin sister had come to Australia at the beginning of 2018 to study. Your academic year had gone particularly well. You were buoyant and looking forward to your sister and friends here in Australia, together with visitors from Singapore, enjoying holidays together.

7The group that decided to have a road trip to Ballarat and the Grampians were Ms Lok and Mr Nor Hassam, who arrived from Singapore on 19 November. You and your twin sister, Naimi Nasser and another friend Ms Ngoh, who also was studying in Melbourne. A car was hired.

8You stayed the night of 23 November in Ballarat after site seeing at Sovereign Hill. The next morning you returned for the second day of your visitor pass at Sovereign Hill.

9In the afternoon your group drove to Halls Gap where you did a bush walk. Sometime between 5:30pm and 6:30pm your group decided to head back to Melbourne.

10The driving was shared between your sister, Ms Ngoh and yourself. You were driving when you left Halls Gap. There is no account in your record of interview or the statement of Mr Nor Hassam as to what route you talk from Halls Gap, but it seems you were using a phone GPS to navigate.

11Ordinarily a driver would head from Halls Gap to Ararat and then take the main western highway directly to Melbourne. However, somehow around 8:10pm - 8:20pm you were driving north along Madden Road, Cardigan, heading back towards the Western Highway. Madden Road intersects with Remembrance Drive, a road that runs from, and then parallel, to the Western Highway and then into Ballarat.

12The intersection is notoriously dangerous. There have been many - too many collisions there in recent years. Thankfully plans and, importantly, funds have been dedicated to significantly ameliorate the inherent dangers by the construction of a roundabout.

13But as you drove along in the early evening of 24 November 2018 you did not appreciate, until it was too late, that there was an intersection or that you were the one required to stop. As you went through the intersection you collided with a ute driven by Mr Forbes who had his daughter in the car as a passenger.

14Ms Lok, who was seated in the middle of the rear seat sustained severe and ultimately fatal head injuries. She was not wearing a seatbelt. Ms Ngoh, who was seated behind you, sustained serious spinal and facial injuries. Your twin sister sustained serious injuries involving fractures in her pelvic area.
Mr Nor Hassam was not seriously injured and nor were the occupants of the other car, Mr Forbes and his daughter. You sustained some injuries.

15Mr Forbes and his daughter were very shaken up as outlined in Mr Forbes victim impact statement, which I have read and taken into account.

16Ms Lok's parents and brother have been, and remain, heartbroken by the loss of their vibrant young daughter who had such a bright future. The victim impact statements of both parents and the short statement of her brother reveal their pain and loss, but they are remarkable for their generosity towards you.

17As I said earlier and in the sentence indication hearing, the intersection was notoriously dangerous and it was the scene of many previous collisions.
Yet, at the time of your collision in November 2018 there were only two advisory stop signs 192 metres from the intersection and two stop signs at the intersection.

18In May 2018 the speed limit was reduced from 100 kilometres an hour to 80 kilometres an hour. In your record of interview you did indicate that you had lowered your speed as you drove towards the intersection, albeit you did not appreciate it was there.

19The expert evidence was that, with the road alignment and the positing of a building and trees at the intersection, it had the effect of a driver heading in the northerly direction seeing through the intersection or not seeing or appreciating

fully that there was an intersection and one where the other road had the priority.

20Following the collision there was a further reduction in the speed limit along Madden Road, the installation of rumble strips and extra signage. As noted, there are even more wholesale redesigns of the intersection now approved, funded and awaiting construction.

21There had been in the years leading up the collision a considerable number of complaints from local road users and the local council and articles and letters in the local media.

22As was made clear in the recent decision of Pan v The Queen,[1] a poor design of an inherently dangerous intersection can be of 'fundamental importance' in assessing the moral culpability of a driver who does not obey the road sign causing a collision, which in turn causes death and/or serious injury.

[1] [2020] VSCA 42.

23The Court of Appeal in Pan concluded that poor road design is a factor to be seen as outside an accused driver's control, similar to such things as a deceased not wearing a seatbelt or a deceased also driving in a drag race type of scenario. In Pan, the Court of Appeal considered the intersection there to be poorly designed notwithstanding many more features than were at the Madden Road and Remembrance Drive intersection. Those features included three sets of rumble strips, warning a driver of the approaching intersection and the requirement to stop. The Court of Appeal in Pan stated that the poor design of an intersection should have ‘compelled a significant reduction in moral culpability’ of that accused in that case.

24Although I must be wary of any comparison of one set of circumstances at one intersection with another, there is in my view little doubt that the design of the intersection at Madden Road and Remembrance Drive was significantly more a problem, making risks, outside the control of the driver, much greater than what confronted the accused in Pan.

25Your driving was, up to that point of the collision, careful and reasonable. There was no speeding, showing off or inattention. No deliberate distracting behaviour like using a phone while driving. Your driving was not impeded by having taken in alcohol or drugs or impeded by fatigue. In short, there was nothing about your driving except the momentary inattention to the advisory and stop signs at the intersection. This momentary inattention was the cause of the collision. However, the momentary inattention was at an intersection that was poorly designed and thus, this compels further significant reduction in your moral culpability.

26All these factors led me to conclude that your moral culpability is at the lowest level. But for the classification of dangerous driving causing death as a Category 2 offence, I would have comfortably found your case in the same sort of general category as was described by the Court of Appeal in Bell v The Queen[2] and by experienced County Court judges, who have imposed non-custodial sentences in multi fatality country road collisions, such as in Nicholson,[3] and in Calf.[4]

[2] [2018] VSCA 281.

[3] [2017] VCC 1950.

[4] [2020] VCC 353.

27However, in your case, I must apply the Sentencing Act 1991 (Vic) provisions relating to Category 2 offences. Those provisions relevant read as follows:

In sentencing an offender for a Category 2 offence, the court must make an order [imposing imprisonment] unless (c) the offender proves on the balance of probabilities that (ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or (e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of imprisonment.[5]

[5]Sentencing Act 1991 (Vic) s 5(2H).

28At subsection (2HC), the statute goes on to say:

In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court (a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than any other purpose set out in s.5(1); and (b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c) must not have regard to (1) the offender's previous good character other than the absence of previous convictions or findings of guilty; or (2) an early guilty plea; or (3) prospects of rehabilitation; or (4) parity with other sentences.

29Subsection (2I):

In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to (a) the Parliament's intention that in sentencing an offender for a Category 2 offence, only an order of imprisonment should ordinarily be made; and (b) whether the cumulative impact of the circumstances of the case justify the departure from such a sentence.

30In an important decision of Farmer v DPP,[6] the Court of Appeal in June this year analysed these provisions for the first time. In the earlier decision of the DPP v Hudson[7] the Court of Appeal examined the earlier and arguably less restrictive iteration of these statutory provisions.

[6] [2020] VSCA 140.

[7] [2010] VSCA 332; 30 VR 610.

31In Farmer, the Court of Appeal made clear or reaffirmed that a combination of factors can come together to bring satisfaction of the criteria.

32In your case, there are three areas of significant weight that combine to such a degree that the very strict criteria or the very high threshold is nonetheless made out. One of the important factors identified in Farmer that can add significant weight to the combined factors is if there is very low moral culpability of an offender. The principle of a very low moral culpability being a key factor in overcoming the high threshold set out in s 5(2H) was indeed put forward by the prosecution recently as central to a submission, agreeing that the criteria in the Act were satisfied. Here, I refer to the dangerous driving causing death sentencing case of DPP v Borg.[8]

[8] [2016] VSCA 53; 258 A Crim R 172.

33It seems to me that this issue of low moral culpability is an important if not a very important matter with respect to the Category 2 offence of dangerous driving causing death because it is the level of moral culpability that plays a fundamental role in the instinctive synthesis of what is an appropriate sentence where a death is caused by dangerous driving.

34As was made clear by the Court of Appeal in the earlier decision of Bell – a decision prior to the Category 2 amendments – that where moral culpability is at a low or at the lowest level, different considerations open up beyond the ordinary principle of drivers who take a life by dangerous driving should expect a sentence of imprisonment.

35As I have said, your moral culpability was at the lowest level and I do not wish to be unnecessarily repetitive, but with respect to my path of reasoning on the specific requirements that I find that there are substantial and compelling circumstances that are exceptional and rare and that justify not imposing imprisonment, I make things clear by reference to what I said in the sentencing indication ruling.

36Firstly, you were completely unfamiliar with the intersection and its inherent dangers. You were not like a local who knew the intersection and did not take the necessary care as was the case in the County Court decisions of

[9] [2020] VCC 111.

[10] [2017] VCC 1950.

[11] [2020] VCC 353.

[12] [2020] VCC (Mullaly J, 17 July 2020).

DPP v Patterson,[9] DPP v Nicholson,[10] and DPP v Calf,[11] but also see a case of unfamiliarity being DPP v Patel.[12] Unfamiliarity in my view adds an element lowering moral culpability to some limited degree.

37Secondly, with the limited warning signs, you did not see that there was an intersection and you were the one who had to stop until it was too late. To that point, you had been driving carefully and responsibly.

38Thus, three, your failures are properly described as inattention or momentary inattention. This combined with a fundamentally important factor outside your control, being the inherently dangerous design of the intersection means that your moral culpability is at the lowest level.

39Four, in addition, your moral culpability is further lowered by reason of another important factor outside your control, being the failure of the deceased to wear a seatbelt. There is evidence that if she had worn a seatbelt, she may not have died, but like the others in the car, survived and at worst suffered serious injury.

40Another contributing factor are matters personal to you. It was fundamental to the decision in Farmer that the unusual personal circumstances of the accused in that case warranted significant weight going in combination or going to cumulate such that the circumstances amount to substantial and compelling circumstances that were exceptional and rare. In the case of Farmer, the accused suffered from alopecia, that is his hair fell out. This was said to make him particularly vulnerable if imprisoned and increase the onerousness of imprisonment. These were said by the Court of Appeal not to be ‘run of the mill matters’.[13] The concept of ‘run of the mill matters’ was discussed at length in the DPP v Hudson.[14]

[13] Ibid [30].

[14] [2010] VSCA 332; 30 VR 610.

41The matters pointed to by your counsel are the following. One, your profound remorse and guilt, which have crystallised into the mental illnesses of Post-Traumatic Stress Disorder and a major depressive disorder. These factors would make prison particularly more onerous on you. I will say more of these matters separately.

42Secondly, in addition, prison for you would be particularly more onerous because of your young age, your culture and especially your petite stature as a devout practising Muslim.

43These factors intersect with and are made more acute relevantly by reason of the third factor that adds weight to these cumulation of factors. That matter is the effect of the unprecedented, or to put it in simple terms, the rare and exceptional fact of the global COVID-19 pandemic. Again, I will refer to what I said in the sentencing indication hearing.

44The pandemic has had an extraordinary impact on the criminal justice system, most acutely felt by those with trials in the County and Supreme Courts.
The unprecedented suspension of jury trials has delayed the hearing of all County Court trials that were listed to be heard in Melbourne, or as is the case with you, on circuit in Ballarat. There is no date for the resumption of trials. A very significant amount of work has been done to allow the courts to establish COVID safe trials in the courtrooms around Victoria. While planning is well underway, there can only be very broad estimates of when trials will resume. Circuit cases have particularly enduring problems of limited courtrooms and judges being available to hear trials. There are many, many other trials awaiting in Ballarat. There are a significant number of variables that make plotting the time that your trial could have proceeded extremely difficult. What can be said is it would not proceed until 2021, and whether it was heard in 2021 at all could not be firmly guaranteed.

45Thus, the always difficult aspect of delay in cases involving a death and injury on the road are, in my view, very significantly magnified by the fact of the global pandemic. This contributes to the already compromised mental health issues that you suffer from by reason of your grief and trauma at the death of your friend and injury to your twin sister and other friend. The length of the delay is exceptional and caused by the rare and unprecedented pandemic.

46The psychological effect on you of the delay to the trial is very considerable, explained in the expert evidence of your treating psychologist, Dr McHugh and the accounts of your family. Thus, your plea of guilty in circumstances of having an arguable and viable defence, when jury trials are suspended, is a step that justifiably attracts much more weight than would be the case if there was no pandemic and consequent delays.

47The other established effect of the pandemic is the much greater burden of imprisonment. Prisons are very different now and the ordinary concepts of the heavy burden of punishment is much multiplied because of the significant restrictions, the lockdowns and the heightened anxiety of the risk of illness of all prison inmates. These are likely to be felt more acutely by a first offender who would not have had any possible conception of ever being imprisoned. That of course is your case.

48Further, you are very close to your family, all of whom are in Singapore, and thus by the reason of the pandemic, you are separated from them. This would have had its difficulties absent any charges but you feel the combination of isolation and the grief and trauma and the unknown of the delays very acutely indeed. This situation is caused by the rare pandemic and is not a run of the mill set of circumstances. It is truly rare and exceptional. The effect is substantial and compelling.

49The words of s 5(2H), outlining what must be given greater weight and what must not be regarded, make it plain that satisfying the stated criteria in s 5(2H)(e) has been set as a high hurdle, and it is not likely to be often overcome. However, giving all the provisions proper consideration, this is one of the rare cases where the criteria are met, and I do consider there are substantial and compelling circumstances that are rare and exceptional that justify a non-custodial sentence.

50Further, I have formed the conclusion that the criteria set out in s 5(2H)(c)(ii) are made out. That is, in my view, based on the expert evidence of Dr McHugh, you have an impaired mental functioning, as defined, being serious Post-Traumatic Stress Disorder and major depressive disorder. This impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
As discussed above, these mental health issues are a significant contributor to the factors establishing the criteria in s 5(2H)(e). Alone, they are important considerations.

51The Court of Appeal in Brownv DPP,[15] has recently reaffirmed that a properly established impaired mental functioning is, or can be, a particularly weighty matter in determining sentence. What is required is solid evidence that withstands proper rigorous analysis. You rely on the expert reports of:
Dr McHugh, who has been treating you from 4 December 2018, that is two weeks after the collision. He diagnosed you with Post-Traumatic Stress Disorder and a major depressive disorder, with symptoms such as constant guilt about what had occurred and that you survived and Ms Lok did not.

[15] [2020] VSCA 212.

You expressed that you wished it was you not her that died. There is no doubt your remorse is beyond the common run of the mill type of remorse. It is mentally debilitating, involving strong recurring themes of blame. In addition, there have been regular, intrusive, repeated memories and flashbacks giving rise to the Post-Traumatic Stress Disorder.

52Dr McHugh, through treatment and your resilience or dedication to your studies, saw that you were able to improve or settle in 2019 – that was his view.
You were throughout that time well connected to your family, who came regularly to Melbourne, and to your twin sister who remained with you. There were nonetheless certainly many ups and downs and an unrelenting, underlying sense of tormenting guilt.

53With the imposed isolation from your family in 2020, things have deteriorated. Your Post-Traumatic Stress Disorder is more evident and more debilitating. The letters from your parents and sister that were tendered to the court are powerful evidence of your mental fragility. You are by nature a sensitive young woman who, by default, thinks about others. For you to take your young friend's life is psychologically truly debilitating. Your remorse is profound and not simply internalised as a lifelong burden that it will no doubt be. Rather, as your counsel wrote: ‘Ms Nasser continues to be consumed by guilt and has a sense that she must be punished herself, be punished by God and seek to atone by dedicating her life to helping others in Ms Lok's name.’

54I add to this that the poem that you wrote for your friend, Ms Lok, was very moving and genuine. It spoke volumes of your character and the deep psychological scars you carry.

55As I stated on the basis of Dr McHugh's reports and the letters from your family and friends, you are very, or acutely, fragile at the moment and the further burden in the very much more serious environment that prisons are in at the moment would amount to substantially and materially greater burden or risks of imprisonment for you. Your mother's letter set this out powerfully, when she wrote: ‘Prison will break her fragile psyche and I am terrified that if she was to be imprisoned, she will never be the same, wonderful, dedicated, hardworking and compassionate person she is now’.

56Your sister wrote:

'The prospect of imprisonment sparks fear and dread in Nasuha. Nasuha is also uncertain if she will be able to cope emotionally and psychologically being forced to be isolated completely from her family. Currently a key contributing factor as to how she is coping emotionally is that she video calls me every day. Going even a day without talking to me results in Nasuha resorting to negative emotion. As twins, we have been a part of each other's lives since before we were born. We would both likely suffer significantly moving forward with our lives, forced to be completely separate from each other without being able to check on each other's wellbeing'.

57Thus, as I made clear in the sentence indication hearing, the high test of s 2H(c)(ii) is established on the balance of probabilities. It is in the end a solid basis in this case to impose a sentence other than imprisonment.

58There are a catalogue of powerful mitigatory matters that can be factored into the overall sentencing consideration. You have to this point good character without any prior criminal convictions or adverse driving history. The statute which did specifically prevent consideration of the early timing of a plea however does not mean that I could not, at the time of considering the Category 2 matters, take into account the fact of the plea. As I outlined, the fact of a plea in this case is a matter of very significant weight and that remains so in consideration now of sentence.

59I am of the view as expressed by the prosecutor, Mr Bourke, that this is not to be categorised as an early plea, but it is a plea where there was an arguable defence. Thus, the benefits of pleading guilty are considerable. Of course, it is also another very significant expression of remorse. I will not detail again all the matters that establish that you have a deep and enduring grief and remorse.

60In my view, your rehabilitation is assured. You are someone who has a sense of doing the right thing and thinking of others, both those close and universal. After the court proceedings are over, you will continue or resume your lawful life. Of that, I am confident. However, the fact of a conviction and involvement in the criminal justice system will weigh heavily on you as you endeavour to secure work and a career as a psychologist in Singapore.

61You are still a young woman and all the principles relating to sentencing young offenders have application here. You are of course a young first offender, and absent the provisions set out as the Category 2 offences, all must be done to ensure that a young offender is not imprisoned, if that can be done.

62What also must be said is that I have not lost sight of the need for denunciation and deterrence. Dangerous driving causing death and serious injury must always be denounced. All drivers must remain attentive. Momentary inattention, as is the case here, remains dangerous and a criminal offence. What is expected of all drivers is a level of care to ensure that no signs are missed, and no lives are lost, and no serious injury is caused. Others who fall below what is expected should understand that unless your case or your circumstances are truly exceptional and rare, you will be punished by a term of imprisonment, harsh as that may seem.

63While a community corrections order can operate as punishment and as denunciation, overwhelmingly the punishment for dangerous driving causing death in the absence of exceptional and rare circumstances will be actual imprisonment.

64Having given you a sentence indication that I would not impose imprisonment, I will not dwell on all the sentencing purposes that will ordinarily lead to imprisonment. I intend to impose a single aggregate sentence of a community corrections order for the three connected offences. It will be onerous, as it should be. Because of your own psychological treatment, there is no need for a court mandated condition for mental health treatment.

65Your rehabilitation will be of your own making. The community corrections order will be over a lengthy period and will require significant unpaid work as punishment.

66Doing the best I can and for the reasons that I have set out, for committing the crime of dangerous driving causing death and committing the two crimes of dangerous driving causing injury, you are placed with conviction on a three year community corrections order with a requirement that you do 250 hours of unpaid work.

67In respect of your licence, you are disqualified from driving in the State of Victoria for 18 months.

68Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of imprisonment being two years and six months with a non-parole period of one year and nine months.

69Are there any other orders required?

70MS SHANN: No, Your Honour.

71MR BOURKE: Your Honour, I just might need to get some instructions about a forensic sample.

72HIS HONOUR: Yes.

73MR BOURKE: Would Your Honour just excuse me one moment?

74HIS HONOUR: Yes, of course. I need to do some various things which are out of the ordinary in a sense that we usually have an order to give to the offender so they can sign it. That is not the case here. So I just need to run through what a community corrections order means to Ms Nasser.

75MR BOURKE: Yes, Your Honour.

76HIS HONOUR: And ultimately get her oral consent.

77MS SHANN: And Your Honour, it is Box Hill Justice Centre as we understand is the closest.

78HIS HONOUR: Box Hill, that's very kind, thank you.

79So Ms Nasser, I have placed you on a three year community corrections order. Now, the terms of a corrections order are divided into those conditions that apply to every single corrections order and I will run through them. Then there is a special condition that applies to you and that is that you must do 250 hours of unpaid work.

80With respect to the ordinary standard or core conditions of a community corrections order, the first of those is that you must not commit an offence for which you could be imprisoned during the period of time that the community corrections order is in place. That is within the three years, you are not to commit an offence punishable by imprisonment. Almost every offence is punishable by imprisonment and I should point out to you, driving while disqualified is certainly a crime that would have the effect of breaching this community corrections order.

81If you did breach a community corrections order by committing another offence, then you would come back before me to be resentenced for the original offences and the mercy that has been shown here, it just would not be repeated. You would likely, highly likely be imprisoned. So it is just to return back to the ways that you have in the past and know well, do not commit any offences at all.

82The next set of core conditions really are about cooperation. The Office of Corrections, under the Sentencing Regulations, will require things of you such as a photograph to be taken and identification matters. Just cooperate with that. Further, you must let them know of any change of address or any change of employment. You must accept visits from the Office of Corrections. Importantly in your case, you must not leave Victoria without getting permission to do so. So you must make it clear if you wish to leave Victoria and get permission to do so.

83Just doing this from memory without a document. I do not believe that - I think that covers all of the provisions of the community corrections order. They are about cooperation. Let them know where you live. If you change your address, let them know. If you get a job, seek their permission in respect to important things such as travelling interstate.

84All right, and you must contact the Office of Corrections, that is the one at Box Hill, within two clear working days. All of it is done by telephone communications at the moment. So you must get the details of the Office of Corrections at Box Hill and contact them to start the Corrections order. They will be notified that you have had a corrections order placed on you. So that must be done within two clear working days, so do it today or tomorrow or the next day at the latest. The details will be provided to you.

85That document will be produced to me. I will sign it but I will also put on it, if I can, that you having had these conditions explained to you, that you consent to doing this corrections order. So, Ms Nasser, do you consent to the order?

86OFFENDER: Yes, I do.

87HIS HONOUR: All right. We now need to sort out, Mr Bourke, any 464?

88MR BOURKE: Yes, there is an application, Your Honour.

89HIS HONOUR: What do you say about that, Ms Shann?

90MS SHANN: Your Honour, that application is opposed. I note that as I understand it, it is discretionary and it is usually linked to the issue of prospects of rehabilitation. I note what was said in Bell v The Queen, a decision that Your Honour has referred to, the sentencing judge in that case, and this is at paragraph 26 said, in refusing to make such an order, 'I find there is no possibility of the appellant being involved in any further criminality and no risk of recidivism and that was considered a basis for refusal.' We say that is apposite to Ms Nasser's situation and that Your Honour ought not be persuaded that it is required.

91HIS HONOUR: Thank you. Mr Bourke, anything?

92MR BOURKE: Yes, sorry, Your Honour, can I just clarify, Your Honour, it is an application to retain a sample that has already been given.

93HIS HONOUR: Yes.

94MR BOURKE: Rather than to take one. Apart from that, I have nothing further to say about it.

95HIS HONOUR: Yes, well that probably puts it in a different category, Ms Shann. What do you say about it? It has been taken via the blood samples or the like that were taken post the collision. So those samples are kept and retained unless there is no charges or no conviction or no finding of guilt. Does that present to you a different scenario?

96MS SHANN: Your Honour, the same features should apply, although there is no compulsory taking of the sample, there still needs to be a basis for retention. So we maintain the submission.

97HIS HONOUR: Thank you.

98Application has been made that the provisions of 464 of the Crimes Act should see me grant to the prosecution the ability to retain a sample taken from
Ms Nasser at the time of the collision. The purposes of that DNA being extracted from that sample and placed on the database. The application ordinarily, considerations would be whether there are prior matters, whether the gravity of the offence would lead to the granting of the application and the further consideration is whether it is in the interests of justice.

99Ordinarily, the interests of justice relate to the ease of detection of someone who presents with some risk of reoffending. That is not this case. It was not in Bell. It is not in many driving cases such as this.

100Consideration about the interests of justice is whether there is an interest in there being retained on the database, more samples so that the statistical analysis can be more complete.

101In my view, that should not drive me to grant the application. It is not sufficiently in the interests of justice to retain Ms Nasser's sample in all the circumstances personal to her and general to this offence and I refuse the application for the retention of her forensic sample.

102MS SHANN: As the court pleases.

103MR BOURKE: Your Honour, can I just make an enquiry, I might have missed it. The 250 hours, did Your Honour order that over a particular period of time?

104HIS HONOUR: The whole three years. She can do it as speedily as possible. There may be ups and downs that I do not know because of the COVID provisions about how that is to be done and dovetailing in with other aspects of further studies and international travel but 250 hours over the three years.
Is there anything technically wrong with that?

105MR BOURKE: No, Your Honour, I just missed it, that is all.

106HIS HONOUR: Thank you very much. If there is nothing further, I will leave the hearing. I thank counsel again for their considerable assistance in a very difficult case. Thank you.

107MS SHANN: As the court pleases.

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