R v Bilal
[2014] ACTSC 74
•11 April 2014
ACT SUPREME COURT
Case Title: | R v BILAL | |
Medium Neutral Citation: | [2014] ACTSC 74 | |
Hearing Date: | 21 March 2014 | |
DecisionDate: | 11 April 2014 | |
Before: | Burns J | |
Decision: | See [28] | |
Catchwords: | CRIMINAL – Sentence – recklessly inflict grievous bodily harm – taxi driver strikes victim with vehicle – severe injuries to victim – degree of recklessness extremely high – offence in upper range – good prospects of rehabilitation | |
Legislation Cited: | Crimes Act 1900 (ACT), s 20 | |
Cases Cited: | Ross v R [2012] NSWCCA 161 The Queen v Booth [2004] ACTCA 21 | |
Parties: | The Queen Hamza Bilal | |
Representation: - Counsel | Mr S McLaughlin (Crown) Mr S Whybrow with Mr J Moffett (Defence) | |
- Solicitors | ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Defence) | |
File Number(s): | SCC 122 of 2013 | |
R v Hamza BILAL
SENTENCE
You may remain seated for the moment, Mr Bilal. Hamza Bilal, on 29 November 2013 you pleaded guilty to one count of recklessly inflicting grievous bodily harm on Gerald Collins-McClinton on 22 March 2013. I note that this charge was an alternative on the indictment to a more serious charge of intentionally inflicting grievous bodily harm, and that the crown accepted your plea of guilty to the lesser charge, in full satisfaction of the indictment. The maximum penalty for the offence of recklessly inflicting grievous bodily harm is 13 years' imprisonment (s 20 Crimes Act 1900 (ACT)).
On 22 March 2013, you were working as a taxi driver. The victim hired you in Dickson to take him to William Webb Drive in McKellar. The victim was intoxicated and you demanded that he pay the full fare before you left. However, he refused. He told you he would pay half the fare before leaving and the balance on arrival at the destination. He paid you about $20 and you commenced driving towards McKellar on Ginninderra Drive.
On the way the two of you continued to argue heatedly about the fare. You stopped the taxi on Ginninderra Drive and demanded full payment of the fare and threatened to require the victim to get out of the taxi if he did not pay. The victim then paid you about $25. At that point, you turned off the meter and continued to drive along Ginninderra Drive. However, you and the victim continued to argue about the fare.
You stopped the taxi on the western side of William Webb Drive in McKellar on the opposite side of the road to where the victim lived. He gathered his personal possessions and alighted from the vehicle. You drove off along William Webb Drive in a northerly direction. At that time you received notification of a job at the Kaleen Sports Club. You executed a U-turn on William Webb Drive and drove back towards the victim, who had by this time stepped off the western kerb of William Webb Drive and was crossing the road.
He was a bit wobbly on his feet, no doubt due to his level of intoxication. A witness observed what happened. You were seen to slow down as you approached the victim and drive towards him on the wrong side of the road. As you approached him, he either stumbled or stopped and your taxi hit him. He was knocked underneath the front left wheel of the taxi as a result of being struck. He became wedged under the front wheel arch and was dragged back over into the southbound lane and along the road for a distance of approximately 52 metres before being dislodged.
You then drove over him before driving away from the scene. At no time did you stop from the point where you drove towards the victim to the point where you drove off. You continued to work for the remainder of your shift. At about 4 am the next morning at the conclusion of your shift, you washed the taxi at a petrol station. You later told police you did not stop after the collision because you were not happy with the victim and that he had abused you, so you were not “in a condition to stop and help him".
The victim suffered extensive and indeed horrific injuries. He was transported to hospital by ambulance where he was triaged as a category 2 patient. This is a category assigned to patients with imminently life‑threatening injuries which required time‑critical treatment. The following injuries were documented:
a.Anterior dislocation of the right femoral head;
b.Displaced compound fracture of the inferior pubic ramus on the right side;
c.Anterior compound fracture on the superior pubic ramus on the right side with extension into the pubic symphysis;
d.Posterior compound fracture of the superior pubic ramus on the right side, extending into the acetabulum;
e.Complex compound fracture of the anterior and medial acetabular walls on the right side, with considerable displacement;
f.Bleeding into the pelvis along the right side, associated with multiple pelvic fractures;
g.Haematoma of the obdurator internus muscle on the right side;
h.Haematoma of the obdurator externus muscle on the right side;
i.Fracture of the right sacral ala with disruption of the S1–S4 sacral foramina and involvement of the sacroiliac joint at the level of S1;
j.Subcutaneous haematoma in the right anterolateral lower abdominal wall;
k.Extensive abrasion with skin and soft tissue loss over the left lower anterolateral abdominal wall;
l.An abrasion to the right upper limb with associated swelling;
m.An abrasion to the left upper with associated swelling;
n.A laceration to the right thigh;
o.An abrasion to the left thigh;
p.An abrasion to the right knee; and,
q.An abrasion to the left knee.
The victim required several operations at the Canberra Hospital and was subsequently transferred to the Concord Hospital burns unit in Sydney for the ongoing management of the extensive abrasions to his body, which were estimated to cover 19 per cent of his body surface area. His injuries required treatment from the following medical specialists:
a.Trauma specialists;
b.Orthopaedic surgeons;
c.Plastic surgeons;
d.Intensive care specialists;
e.Anaesthetists;
f.Physiotherapists; and
g.Psychologists.
In the opinion of Dr Amanda Van Diemen, a forensic medical officer, the victim sustained “extremely serious and imminently life-threatening injuries with permanent and long-lasting sequelae”. These include:
a.permanent scarring as a result of his injuries and the treatment required for those injuries,
b.a prolonged period of hospitalisation, bed rest and convalescence,
c.ongoing pain and discomfort,
d.a possibility of ongoing mobility issues related to the extensive nature of the injuries to his pelvis,
e.the possibility of significant loss of neurological function and disability associated with the sacral alar fractures, increased risk of arthritis and immobility in the hip joint; this may lead to significant pain and disability later on in life. A possibility of psychological sequelae related to the experience of a traumatic event.
Sergeant Richard Dowth from the Australian Federal Police Collision Investigation and Reconstruction Team analysed the scene of the collision on 22 March 2013. In his opinion, the incident commenced in the north-bound lane with the taxi, that is the vehicle you were driving, travelling in a southerly direction. At initial contact the victim's centre of mass was below that of the leading edge of the taxi. That suggested that the victim may have been lying, sitting or kneeling. At initial contact with the victim the taxi was almost certainly travelling very slowly. The victim was likely wedged under the left front wheel and pushed or dragged along the road for approximately 52 metres. That could be expected to result in major tissue loss. Towards the last part of the incident the taxi driver, yourself, applied more throttle such that the taxi rode over the pedestrian and left the scene, leaving an acceleration mark on the road surface. The taxi speed during that incident was quite low, possibly in the range of 15 to 23 kilometres an hour.
In evidence at the sentence hearing you said that you did not intend to hit the victim with your taxi, and I accept that to be the case. I accept that your initial intention was to pass very close by him and behind him. You went on, however, to say that you were unaware of the fact that the victim was trapped under the taxi after you hit him. I do not accept that statement. It defies credibility that you drove for more than 50 metres with an adult man wedged in the front wheel arch, being dragged along the road, without noticing. You then drove over the victim before leaving the area. The fact that your vehicle travelled quite slowly from the point where you struck the victim until you applied more throttle and dislodged the victim supports the proposition that you knew the victim was trapped beneath the car. You were not driving slowly after you hit him out of concern for him, as you never at any time stopped to see if he had been injured by that initial contact, or to offer assistance to him.
The only rational explanation for your manner of driving after the initial impact was that you were aware that the victim was lodged under the taxi. The act by which you recklessly inflicted grievous bodily harm on the victim is not confined to the initial striking. It encompasses continuing to drive while the victim was lodged under the vehicle.
Victim Impact Statements were received from the victim, his wife and his mother. They speak of the devastating effect your actions have had upon the victim and his family. The victim has suffered horrendously physically as well as emotionally and financially. He will have life-long disabilities as a result of your criminal actions.
In determining the objective seriousness of this offence, I take into account the fact that it carries a maximum penalty of 13 years' imprisonment, so it is clearly a serious criminal offence. There are two circumstances primarily relevant to determining where the present offence falls in the range of cases that may come within the ambit of this type of offence. They are the degree of recklessness involved and the seriousness of the injuries inflicted.
I am satisfied that the degree of recklessness was extremely high and that the injuries inflicted were extremely serious. I consider the incident offence to be in the upper range of offences of this nature, although not in the category of the worst type of offence. I accept that your actions were spontaneous and involved no planning, but that will often be the case in offences such as this in which actual intention to cause harm is not an element of the offence.
A Pre‑Sentence Report was prepared for the sentence hearing. I note that you are currently 27 years old and that you were 26 at the time of the offence. You have no previous convictions. You grew up in Pakistan and had a stable upbringing. You came to Australia in 2008 after completing the equivalent of Year 12. You were studying at the University of Canberra at the time of this offence, although you have deferred your studies this semester, pending the outcome of these proceedings.
You have limited support in Australia, although you have a cousin living in Canberra with whom you are very close. You have continuing telephone contact with your parents in Pakistan, who continue to provide you with support. You also have a fiancée residing in England, with whom you speak by telephone regularly. You also have a group of friends who continue to be supportive of you in the Territory.
You worked as a taxi driver for three years prior to this offence, but you were suspended from that position after this incident. You have subsequently worked as a disability support worker and in a takeaway restaurant.
I note that you have no physical or mental health problems.
You told the author of the Pre‑Sentence Report that your actions were impulsive. You demonstrated some remorse, but also minimised your own conduct by placing blame on the victim, saying he had been rude to you and that you had lost control of your emotions. You said that you felt guilty immediately after the incident, but the author notes that this did not stop you from immediately returning to work.
The author of the report assessed you as being at low risk of reoffending, an assessment with which I agree. You were assessed as suitable for community service and also for periodic detention. However, in my opinion neither of those sentencing options would be appropriate with respect to this case because of the seriousness of the offence.
At the time you committed this offence you were in this country on a student visa. You are currently on a criminal justice bridging visa. It is probable that upon your release from prison you will be deported. You have not completed your studies in this country, and it is unclear whether the progress that you have made in your current course will be recognised in Pakistan. I do not know whether you will be able to complete your studies in the AMC.
I accept that this offence is out of character. Your cousin, Sohail Akbar, describes you as a very gentle and loyal person. I accept that you have good prospects for rehabilitation. However, this Court must impose a sentence that reflects the objective seriousness of the offence as well as adequately reflecting the requirements of deterrence and punishment. Rehabilitation is only one sentencing consideration.
I accept that individual deterrence does not feature prominently in sentencing you for this offence as you have no prior criminal history, and I think it unlikely that you will reoffend. General deterrence is always a prominent feature in sentencing for offences of this nature, particularly when, as here, the degree of recklessness revealed is high. The community also rightly expects that those who inflict serious injury on its members by highly reckless conduct should be appropriately punished.
Counsel referred me to the decision in The Queen v Booth [2004] ACTCA 21 in which the offender was sentenced to a term of six years' imprisonment for a similar offence in which he struck the victim with a car, leading to the victim suffering a traumatic brain injury.
I note that the offender in that case was 19 years old and had experienced an upbringing characterised by exposure to substance abuse and hostility. Unlike you, he had a significant criminal history. The maximum penalty for the offence of recklessly inflicting grievous bodily harm at the time that the offender in Booth was sentenced was 10 years' imprisonment. Subsequently, it has been increased to the current maximum of 13 years' imprisonment.
I was, similarly, referred to the New South Wales Court of Criminal Appeal decision in Ross v R [2012] NSWCCA 161, where a sentence of four years and six months' imprisonment for a similar offence, not involving the use of a motor vehicle, was set aside on appeal and a sentence of three years eight months was substituted. I note that the injury inflicted in that case, whilst still constituting grievous bodily harm, was much less serious than the injuries that you inflicted.
Would you stand please.
I am satisfied that nothing less than an immediate term of imprisonment will be sufficient to appropriately punish you and to reflect the requirements of sentencing. Were it not for your plea of guilty, which I accept was an early plea in the circumstances and demonstrated remorse as well as having a utilitarian value, I would have sentenced you to eight years' imprisonment. I will reduce that to six years to mark your plea of guilty. In the light of your good prospects for reform, I will impose a somewhat shorter than usual non-parole period of three years' imprisonment. Both the head sentence and the non-parole period will commence on 19 March 2014.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Burns.
Associate:
Date: 20 May 2014