R v Dany Mazbouh

[2018] NSWDC 46

District Court

New South Wales

Medium Neutral Citation:	R v Dany Mazbouh [2018] NSWDC 46
Hearing dates:	2 March 2018
Date of orders:	09 March 2018
Decision date:	09 March 2018
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted. 2 The offender is disqualified from driving for the automatic period. 3 The offender is referred for assessment as to his suitability for an Intensive Correction Order as a means of serving the sentence. 4 The offender is directed to report the Penrith Community Corrections Office in person on or before 4pm on Monday 12 March 2018. 5 I adjourn the proceedings part heard before me to 20 April 2018.
Catchwords:	CRIMINAL LAW – offence - plea of guilty – dangerous driving occasioning death – dangerous driving occasioning grievous bodily harm – Form 1 matter SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – consideration SENTENCE PRINCIPLES – appropriate discount for plea of guilty – community values – remorse – contrition – mental health of offender – post traumatic stress disorder
Legislation Cited:	Crimes Act 1900 ss.52A(1)(c), 52A(3)(c) Crimes (Sentencing Procedure) Act 1999 ss 5, 21A(3)(h), 21A(3)(i), 21A(3)(k), 22
Cases Cited:	R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Whyte (2002) 55 NSWLR 252
Category:	Sentence
Parties:	Regina (The Crown) Dany Mazbouh (Offender)
Representation:	Counsel: Mr K Gilson (The Crown) Mr G James QC (Offender)     Solicitors: C Hyland, Solicitor for Public Prosecutions (The Crown) Lawyers Corp. Pty Limited (Offender)
File Number(s):	2016/00030836
Publication restriction:	None

sentence

1. Dany Mouzbah (the offender) appears for sentence after entering pleas of guilty on 14 July 2017 in the District Court to an indictment containing:

Count 1 - Drive in a manner dangerous occasioning death contrary to section 52A(1)(c) Crimes Act 1900; and

Count 2 - Drive in a manner dangerous occasioning grievous bodily harm contrary to section 52A(3)(c) Crimes Act 1900.

2. The maximum penalty for Count 1 is 10 years imprisonment.

3. The maximum penalty for Count 2 is 7 years of imprisonment.

4. The offender also asks the Court to take into account one count of cause bodily harm by misconduct whilst in charge of a motor vehicle contrary to section 53 Crimes Act 1900 on a Form 1. The maximum penalty for the Form 1 offence is 2 years imprisonment.

Facts

5. The parties presented an Agreed Statement of Facts which can be summarised as follows.

6. At approximately 8:52pm on Friday 29 January 2016 the offender was driving a white Toyota Corolla in a westerly direction on Redmyre Road, Strathfield.

7. Redmyre Road meets Raw Square at Strathfield at a T intersection. The turn from Redmyre Road into Raw Square is a sweeping right hand turn controlled by traffic lights.

8. Witnesses observed the offender to stop at the red light on Redmyre Road. When the light changed the offender proceeded to turn into Raw Square at a speed estimated by the witnesses to be 60km/hour, which was the applicable speed limit. The offender remained in lane 2.

9. Ahead of the offender were 2 sets of traffic lights. The first at the intersection with Churchill Avenue and the second at the intersection with Albert Road.

10. Raw Square in the northbound direction consisted of 3 lanes. Lane 3 was a bus lane up to the intersection with Churchill Avenue.

11. Mr Concha, a witness travelling in the same direction as the offender, observed the lights on Churchill Avenue facing him and the offender change to amber. Mr Jacobs, a similar witness, observed that the lights facing him and the offender were always red after they negotiated the turn into Raw Square.

12. Three pedestrians, Louisa Huang, Glen Surjadinata and Michael Stramandinoli approached the pedestrian crossing at the lights at the intersection of Raw Square and Churchill Avenue. They left the western kerb on a green walk signal.

13. Ms Shirtley, a witness, saw the offender’s vehicle approaching the lights at Churchill Avenue without slowing down, but she did not think it was speeding.

14. The offender failed to stop at the red light and drove through the pedestrian crossing area and swerved right into lane 3 before hitting all 3 pedestrians, who were walking alongside each other. Each of them struck the bonnet and the windscreen of the offender’s vehicle before ending up in different positions on the roadway.

15. The prosecution cannot prove that the offender saw the red light and chose to ignore it. The offender asserted in his record of interview that he went through a green light. The prosecution cannot exclude the possibility that the offender saw a green light facing him at Albert Road. It is not suggested that excessive speed was a factor. The offender said in his record of interview that when he saw the pedestrians he tried to manoeuvre the vehicle away from them.

16. Police attended and examined the scene. It was dark, the road was dry and in good condition.

17. Ms Huang was taken to Westmead Hospital. She suffered multiple fractures, closed head injuries and collapsed lungs. She underwent surgery. Her life support was turned off and she died on 31 January 2016.

18. Mr Surjadinata was taken to Royal Prince Alfred Hospital. He suffered minimally displaced fracture to the right concave of the pelvis, comminuted fracture to the right pubic ramus and right fibula and sacrum, low-grade interstitial injury to the right anterior cruciate ligament, superficial haematoma to the right frontal bone, lower back tenderness and abrasions to limbs and body.

19. Mr Stramandinoli suffered an undisplaced fracture through the spine of the left scapula, haematoma to the left forehead, a chipped tooth and abrasions to his limbs and body. He also has memory loss regarding the incident.

20. The offender voluntarily attended Penrith police station on 30 January 2016. He was arrested and participated in an electronically recorded interview. The offender stated that he was driving at 50km/h when he approached the intersection. When he was about 10 metres or less from the intersection he noticed that the traffic lights were green.

21. The offender saw the pedestrians crossing the road when he was 2 metres from the crossing. He attempted to slow down and manoeuvre away from the pedestrians; however they continued to walk in that same direction. When the offender got out of his car he heard the beeping sound from the green pedestrian walk signal.

22. The offender’s vehicle was forensically examined and no mechanical faults were found.

The Offender’s case on sentence

23. The offender tendered a report from John Machlin, Clinical Psychologist dated 5 July 207. The psychologist saw the offender once for the purpose of preparing the report. The contents of the report can be summarised as follows.

24. The offender was born in Lebanon. He is the third of 8 children. The offender described a good family background where no one in his immediate family had any issues with illicit drugs or criminal convictions. The offender told the psychologist that his parents treated their children well, there were no instances of domestic violence that he could recall and that he had a harmonious relationship with his family. The offender stated that a younger brother had ongoing kidney and colon problems from birth which required continued medical attention.

25. The offender’s father died when the offender was about 10 or 11 years of age. He was working as a taxi driver at the time. The death had a devastating impact on the family. The offender left school a few years later and helped his older brother to support the family.

26. The offender reported satisfactory performance at school, without any social or behavioural problems. He enjoyed playing soccer. After the death of his father, he felt a responsibility to work and from the age of 14 did occasional almond picking and panel beating whilst still at school. The offender completed his schooling to year 12 and also completed his compulsory national military service in Lebanon, which was a positive experience.

27. At age 20 he married an Australian born Lebanese woman named Fatima. In 2001, the offender migrated to Australia and they lived in Sefton. The offender and Fatima have 2 sons aged 15 and 8 and a daughter aged 6. The offender and his wife separated 4 years ago. They remain on friendly terms. The offender purchased a home for his wife and children at Penrith and he helps them with repayments on the home loan. The offender remains in contact with his children. As a condition of his bail the offender has been living with his wife and children

28. When he came to Australia, he worked as a cleaner and in a cousin’s mixed business. The offender attained his security licence and has done this work for some time in a number of licensed venues. The offender described his work history as solid, however as a result of the stress associated with the court proceedings has taken a few months break and reduced his regular working hours. The offender presently works 30 hours per week.

29. The offender has also had some time off work due to a chronic back injury. The offender has taken prescribed pain medication and over-the-counter pain killers at various times. Since the offence, the offender told the psychologist that he has been taking pain medication for headaches.

30. The offender was not aware of any family history of mental illness, nor had he been treated for any himself. The offender denied any history of illicit drug or alcohol abuse.

31. The offender said that he drove through the intersection believing the lights were green. He denied speed was involved. He was not affected by drugs or alcohol. The offender said that he was not distracted by any other source.

32. In the aftermath of the accident he was in shock and did not know what to do. After being released from Concord Hospital he spent the night at home with his brother and he was unable to engage in conversation.

33. Over the following months the offender has experienced ongoing shock and disbelief and an inability to act or do anything. He often “sat at home, doing nothing, just sitting”. The offender reported having no energy as well as little to no appetite resulting in some weight loss.

34. The offender has had 7 therapy sessions with a psychologist in Penrith, but did not feel that they assisted. The offender also saw his longstanding general practitioner, Dr Al-Taiff for problems associated with mood, constipation and headaches. The offender told the psychologist that his GP referred him to Dr Charles Chan, psychiatrist, at the St John of God Hospital in Richmond. The offender was treated with antidepressants, but ceased taking them after a short time as they made him feel dead to the point that he could not get out of bed.

35. The offender told the psychologist that he has experienced a broad range of symptoms. The offender stated that he could not be bothered doing much which at times affected his bond with his children. He seeks to hide his feelings from his children.

36. The offender stated that he remembers the incident every day and sometimes experiences flashbacks. The offender experiences anxiety and nausea which can fall upon him at any time, as well as experiencing panic attacks which tend to be triggered by a sensation that his clothes are restricting his breathing.

37. The offender has returned to work as a security guard, largely working nightshifts. He relies on public transport, taxis and Uber cars to get to and from Penrith, Blacktown and Quakers Hill. This causes the offender some concern as he often has to walk for long distances and spends the majority of his shift worrying over how he will get home.

38. The offender stated that he has surrendered his passport and has been unable to return to Lebanon to visit his family. He told the psychologist that his family are worried about him.

39. The offender stated that he was nervous over his upcoming court appearance and the prospect of a custodial sentence. He worries for his children and not being able to repay the mortgage on their home. The offender told the psychologist that he was concerned over his ability to manage symptoms of stress, anxiety and feeling breathless whilst in prison.

40. The psychologist confirmed with Dr Chan a diagnosis of PTSD since the offence. Dr Chan also recommended that the offender be referred to a psychologist to help in his recovery and that he continue medication.

41. The psychologist also spoke with the offender’s wife. She confirmed that they had separated as a couple, but remain friendly and communicate effectively regarding the care of the children. Outside of this they do not have a great deal of interaction. She told the psychologist that she noticed the offender behaving differently around the family after the offence, and would often take steps to conceal his feelings and refuse to discuss things. She confirmed that the offender’s mood changes and he becomes agitated, depressed and frustrated.

42. The psychologist opined that the offender suffers from PTSD along with prominent anxiety and depression symptoms. The offender, in the psychologists’ opinion is traumatised by the offence and has been troubled by intrusive recollections, preoccupation, broad functional impairment and depressed mood.

Pre-Sentence Report

43. The court received a pre-sentence report that can be summarised as follows. I will not repeat matters raised in the psychologists’ report.

44. The author of the pre-sentence report stated that the offender presented as a quietly spoken, polite middle aged man. The offender described to the author a positive upbringing in Lebanon. His parents and siblings live overseas. He maintains regular phone contact since migrating to Australia in 2001. The offender reported he returns to Lebanon to visit when possible. The offender stated that he also has extended family living in the Sydney area.

45. The offender stated he is a practising Muslim but does not attend mosque regularly.

46. The offender told the author of the report that the offence was a life changing event and experienced ongoing symptoms of depression and anxiety, coupled with breathing difficulties, panic attacks, bouts of uncontrollable crying, sleeplessness and lack of appetite. This was confirmed with the offender’s wife.

47. The offender said that he was driving home from work on the day of the offence and that his car collided with 3 pedestrians. He stated that he stopped immediately and could not believe what happened and upon realising what had in fact happened, the offender stated that he blacked out and could not breathe.

48. The author stated that the offender disagreed with certain information contained in the witness statements. The offender claimed to be a good driver and that he had no previous record of failing to stop at a red light. The offender told the author that he would not break the law while driving and does not support the behaviour. The offender told the author that the offence was attributable as being an unfortunate event.

49. The offender told the author that he had no intention of hurting anyone and was aware that driving a car has the possibility of serious injury or death. The offender appeared to show insight to the offence and the effect traffic offences have on the wider community.

50. The offender expressed remorse and empathy towards the victims and the impact his actions had on them. The offender told the author that he recognised the effect on the victim’s families. The author reported that the offender became very emotional at this point.

51. The offender was assessed as being in the low risk category of re-offending.

Engineering Report

52. The offender relied on a report of Grant Johnson, Consulting Engineer dated 17 August 2016. Mr Johnson was qualified as an expert to comment on the circumstances of the offence.

53. Mr Johnson was provided with the brief of evidence as well as the photographic exhibits. Mr Johnson also had access to CCTV footage from a nearby building. From this footage he was able to produce a number of time estimates relevant to assessing the speed of the offender’s vehicle immediately before the collision and to observe the movement of traffic and pedestrians in order to estimate when the lights changed at the intersection of Raw Square and Churchill Avenue.

54. Mr Johnson was not required for cross-examination.

55. From his analysis, Mr Johnson drew the following conclusions.

56. The time stamping on the CCTV footage demonstrated that the lights facing the offender at Churchill Avenue were red from the time he commenced to turn into Raw Square from Redmyre Road. This finding is supported by Mr Jacob’s evidence and contrary to Mr Concha’s evidence.

57. It was possible that the lights facing the offender at Albert Road were always green for the same period.

58. It is well recognised in the field of traffic engineering that a common error can be made by drivers where traffic lights are positioned in close succession to each other, where they focus on the wrong set of traffic lights. In some instances, but not this case, it is necessary to provide shielding on the distant traffic lights to avoid this error occurring.

59. An explanation for the offender’s failure to stop at the red light was that he believed, focussing on a green light at Albert Road that the light facing him at Churchill Avenue was green.

60. The offender’s vehicle was estimated to be travelling at between 50-55km/hour on the basis of the CCTV footage and there was nothing unusual about his rate of acceleration away from the intersection at Redmyre Road.

61. The street light on the western kerb of the pedestrian crossing was not functioning at the time of the collision and that presented sub-optimal viewing conditions for the identification of the pedestrians.

Character References

62. The offender tendered a number of character reference all of which portray the offender as a kind and dedicated family man, with a caring and trustworthy nature; who is actively involved in his community and freely gives his time to help others.

Letter of Apology

63. The offender tendered a letter to the Court dated 2 March 2018. He expressed an apology to the victims, their families and to the Court. He has been working for the same security firm for about 6 years. Since the collision, he has experienced feelings of guilt, shame and remorse. The event has adversely affected his life. He became withdrawn and has experienced anxiety and depression. He has reflected on the effects of the incident on Ms Huang’s family and on the other victims and it makes him sad and miserable. He tried to help the victims immediately after the collision, but he couldn’t. This made him feel helpless and that feeling remains with him.

Consideration

Objective Seriousness

64. I have had regard to the matters set out in R v Whyte (2002) 55 NSWLR 252.

65. The offences are objectively serious.

66. The offender is 40 years of age and has no prior criminal convictions. The offences involve the death of one person, serious injury to the second and some injury to the third. The victims were all strangers to the offender.

67. The dangerous aspect of the offender’s driving was the failure to stop at the red light.

68. I accept the evidence of Mr Jacobs and Mr Johnson that the lights facing the offender at Churchill Avenue were always red at the time when the offender turned into Raw Square from Redmyre Road. I would reject the evidence of Mr Concha on this point. I accept the evidence of the offender in his record of interview that he believed that the light was green as he approached the intersection. I infer that this belief was held by the offender because he had mistakenly focussed on a green light facing him at the intersection of Albert Road rather than paying proper attention to the red light facing him at Churchill Avenue. The prosecution conceded that it cannot exclude the possibility that the lights were green at Albert Road.

64. I am satisfied on the balance of probabilities that the offences occurred as a result of inattention to the traffic light facing the offender at Churchill Avenue.

65. The offender’s inattention lasted for the time it took to travel from the intersection at Redmyre Road to the lights at Churchill Avenue. From Mr Johnson’s report this is a time of about 7 seconds and over a distance of about 64.5 metres. It is also relevant that the offender failed to see the pedestrians leave the kerb at the pedestrian crossing and walk to at least the middle of the roadway before the collision. However, the lighting conditions at the pedestrian crossing were slightly degraded by the malfunction of one of the street lights, from where the pedestrians left the kerb.

66. There is no evidence of speed or erratic driving involved in the offences.

67. Taking into account all of the circumstances I find that the offences occurred as a result of momentary inattention and that the offender’s moral culpability for the offences is low.

68. The death of Ms Huang was traumatic. It has deeply affected her mother and family, causing them grief, psychological symptoms and immense loss.

69. The injuries to Mr Surjadinata were serious leg and pelvic injuries in the form of fractures and a minor ligament rupture. There is no evidence as to how those injuries have healed or what level of disability resulted from them. The injuries would have had a significant effect on the victim’s amenity of life. Whilst the injuries certainly qualify as grievous bodily harm, they are not in the most serious category of that type of harm.

70. The injuries to Mr Stramandinoli do not constitute grievous bodily harm, but would have been nonetheless distressing for him.

Deterrence

76. General deterrence is of significance to the offences before the Court. The guideline judgment provides that the penalties imposed for these types of offences must reflect general deterrence.

77. There is a need for specific deterrence in his case. The offender had a poor record of traffic offences. He had received suspensions for a speeding offence in 2010 and for demerit point accumulation in 2012 and 2014. He had incurred 12 demerit points for speeding offences at the time of the offences, leaving him one offence away from a further demerit point suspension. Against that he will be convicted for these offences and disqualified from driving for a lengthy period. The likely effect of that is that he will lose his security licence and he will have to find alternative work. In addition, he suffers from PTSD as a result of the collision which is likely to be permanent.

Aggravating factors

78. There are no aggravating factors.

Mitigating Factors

79. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offences have had a considerable impact on the offender. He has continued to work and support his family to the best of his ability after the collision, in difficult circumstances. I am satisfied that the penalties imposed on him for these matters including the period of disqualification will alter his driving.

80. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to the psychologist, his family, friends and to the Court. I am satisfied on the balance of probabilities that the offender has expressed genuine contrition and remorse.

81. The offender entered a plea of guilty in the District Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 15%.

No alternative to imprisonment

82. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

83. The appropriate terms of imprisonment are 21 months for Count 1 (taking into account the matter on the Form 1) and 12 months for Count 2. Both of those terms will be discounted by 15% to give effect to the plea of guilty. There should be some partial accumulation of the sentences imposed to reflect the different criminality involved in each offence.

84. The resulting head sentence is 2 years imprisonment.

85. This is an appropriate matter in which to consider the imposition of an Intensive Corrections Order.

86. The offender is convicted.

87. The offender is disqualified from driving for the automatic period.

88. The offender is referred for assessment as to his suitability for an Intensive Correction Order as a means of serving the sentence.

89. The offender is directed to report the Penrith Community Corrections Office in person on or before 4pm on Monday 12 March 2018.

90. The sentence proceedings are adjourned part heard before me to 20 April 2018.

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Decision last updated: 09 March 2018