R v Hamdan (No 3)
[2022] ACTSC 326
•28 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hamdan (No 3) |
Citation: | [2022] ACTSC 326 |
Hearing Date: | 28 November 2022 |
DecisionDate: | 28 November 2022 |
Before: | Elkaim J |
Decision: | (i) For the offence of negligent driving causing death the offender is sentenced to 18 months’ (reduced from 20 months’) imprisonment to commence today and end on 27 May 2024. (ii) For the offence of negligent driving causing grievous bodily harm the offender is sentenced to seven months’ imprisonment (reduced from eight months’) to commence on 28 April 2024 and end on 27 November 2024. (iii) The above sentences of imprisonment are to be served by way of an intensive corrections order on core conditions. (iv) For the offence of contravening conditions of a driver licence, the offender is fined $2,500. (v) I note that there will be an automatic disqualification of the offender’s licence. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – negligent driving causing death – negligent driving causing grievous bodily harm – where offender from supportive family and has physical and psychological injuries – where offence killed a bright and caring young woman from loving family – where legislature dictates maximum penalty for negligent driving causing death is two years’ imprisonment |
Legislation Cited: | Road Transport (Driver Licensing) Regulation 2000 (ACT) ss 31, 60 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6 |
Cases Cited: | R v Chancellor [2019] ACTSC 191 R v Creighton (Unreported, Supreme Court of the Australian Capital Territory, 28 October 2010) The Police v Hutchinson (Unreported, Magistrates Court, 4 August 2022) |
Parties: | The Queen (Crown) Ameen Hamdan (Offender) |
Representation: | Counsel M Howe (Crown) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) JDR Law (Offender) | |
File Numbers: | SCC 5 of 2022 SCC 6 of 2022 |
Elkaim J:
The offender came to trial on 5 September 2022 facing two charges of culpable driving, arising from the same collision. Under the first charge the culpable driving was alleged to have caused the death of Ms Alexis Saaghy. The second charge related to the same culpable driving, but causing grievous bodily harm to Mr Zayd Dandash.
On 12 September 2022 the jury found the offender not guilty of the two offences of culpable driving but found him guilty of the alternate charges of negligent driving respectively causing the death of Ms Saaghy and grievous bodily harm to Mr Dandash.
The maximum penalty for negligent driving causing death is two years’ imprisonment: see s 6(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Road Transport Act). The maximum penalty for negligent driving occasioning grievous bodily harm is one year imprisonment: see s 6(1)(b) of the Road Transport Act.
A number of issues dominated the trial. The issue most relevantly going to the question of culpable driving related to the speed at which the offender’s vehicle was travelling before the collision.
The Crown relied on a police expert, Officer McCue, who estimated that the vehicle was travelling between 81 and 100 kph. The expert retained by the defence, Mr McDonald, thought the speed was not less than 49 kph, with a possible range extending to 60 kph. It is probable therefore that the offender was exceeding the speed limit of 50 kph, if only to a small degree. As I will repeat below, the important point however is that it was raining heavily and no account, at least in respect of speed, seems to have been taken of this factor.
Other issues which traversed the hearing included the significance of the manner of driving by the offender about 1.1 kilometres before the collision site. A video taken on Ms Saaghy’s mobile phone possibly suggested that the offender may have been driving in a manner sometimes described as drifting. This was consistent with a song, Tokyo Drift, being played at the same time.
Whatever the manner of driving was, it was clear that the speed at which the vehicle was then travelling, was in the order of 32 kph. This could not be regarded as an excessive speed.
The other issue, which I actually consider to be a non-issue, was the presence of a kangaroo causing the offender to swerve to his right, then leading to the path towards the tree.
The very highest the evidence came to establish the presence of a kangaroo was speculation on the part of a witness arising from the offender uttering an expletive followed by the vehicle turning right. The witness thought there might have been a kangaroo, but he never saw a kangaroo.
In my view the presence or otherwise of a kangaroo was no more than the subject of unfounded guesswork. I note the jury was asked by defence counsel to acquit the accused of even negligent driving if the jury was satisfied there might have been a kangaroo. Clearly the jury was not so satisfied.
The rejection by the jury of the allegations of culpable driving was a natural and correct assessment of the evidence of the experts. The expert called by the defence was not only more qualified than the police officer, but was extremely well-qualified. It would have been a difficult task indeed for the jury to have not accepted that Mr McDonald’s evidence at least created a reasonable doubt as to the speed of the vehicle. It followed that if Mr McCue’s evidence could not be accepted then the higher speeds could in turn not be accepted. A finding that rejected the allegation of culpable driving inevitably flowed.
As to the alternative charges of negligent driving, the evidence was that it was raining, probably heavily, at the time of the collision. The speed limit in the area was 50 kph. Even if the vehicle was travelling at 49 kph a finding of negligence was open. A prudent driver drives according to the conditions. Driving at the speed limit in the conditions that existed is enough to have established negligence.
It is also significant that the offender had been told to slow down by other occupants of the vehicle as he approached a roundabout close to the scene of the collision.
In relation to grievous bodily harm the offender suggested that this element had not been established because, in essence, Mr Dandash had made a good recovery from the collision. He was pain-free and he was doing heavy work.
I think the grievous bodily harm was easily established. The nature of the fracture and the permanence of a long and obvious scar on Mr Dandash’s arm were more than sufficient to establish the required nature of the harm.
There are three matters I would like to add in relation to the facts.
First, the offender was a P plate driver who had held his provisional licence for less than twelve months. This meant that at the time he was driving he was not permitted to have more than one non-family peer with him in the vehicle (s 31 of the Road Transport (Driver Licensing) Regulation 2000 (ACT)). In fact, there were three peers in the car, in breach of a condition of his licence (s 60(1) of the Road Transport (Driver Licensing) Regulation 2000 (ACT)). One might minimise this contravention as being of little moment. I would strongly disagree with this categorisation. Had there been only one other person in the vehicle, it must logically follow that a death or occasioning of grievous bodily harm would not have occurred.
Second, one of the Crown witnesses was a Mr Schwartz who lived near the scene of the collision. He was in bed, but was alerted by the sound of the vehicle and the ultimate crash. He went out to provide assistance.
In his evidence he provided estimates of times which were obviously not feasible. They were a product of a drowsy man doing his best. There was nevertheless a concerted attack on his credit which I considered unjustified. Mr Schwartz did not sleep with a stopwatch. He was a good Samaritan trying to help. He may have been wrong about certain facts, but he was certainly not deserving of a suggestion that he had deliberately exaggerated his evidence.
The third matter arises from the nature of the vehicle that was being driven by the offender. This was a crew cab utility correctly described by Officer McCue as a light truck. That is precisely what it was. It was not a sophisticated motor vehicle with all of the inbuilt safety mechanisms of a motor car.
Mr McDonald described it as an unstable vehicle. Incredibly, vehicles of this type are the most popular vehicles currently being sold in Australia. They are vehicles suited to off-road, commercial and farming duties. I have little doubt that only a small percentage of these vehicles are used for those purposes. In my view their sale should be restricted to persons, like farmers, trades persons and genuine off-road enthusiasts, who have a legitimate use for them.
These types of vehicles are unsafe and dangerous. They should not be marketed and sold as suitable for normal suburban use. In the October 2022 edition of Wheels Magazine, ten of this type of vehicle, including a Nissan Navarro, were tested. In a separate article one of the test drivers, Mr Dan Gardner wrote:
In virtually all objective tests, a ute is a worse family ‘car’ than the actual car it’s replacing.
Last week, I spent a considerable amount of time poring over virtually every dual-cab ute on the current market and, among the numerous interesting revelations and insights, perhaps the most contentious is that none of them are any good.
Mr Gardner was talking about new vehicles. The vehicle in this matter was a 2011 model and much less sophisticated.
I understand that apprentices might be required to have their own utilities for work purposes. If that is correct the requirement is inappropriate. These vehicles should not be in the hands of inexperienced young drivers.
In relation to objective seriousness, by simple definition any activity that leads to a death must be regarded as very serious. However in terms of the range of seriousness within the scope of negligent driving, the most likely description of the negligence in this case is driving too fast for the conditions. On that basis I would place the objective seriousness at above medium.
The offender was born in Canberra and raised within a very supportive family. He continues to receive their support. After completing Year 12 the offender began a carpentry apprenticeship which he was participating in up until the collision. He has since started a course in electronics at an Institute of Technology.
The offender has not been a user of illicit drugs. He was a social drinker. Alcohol played no part in his driving. The offender is a practising Muslim. He attends a mosque regularly for prayers and finds the religion provides a pathway for his future.
The offender was seriously injured in the collision. He suffered a brain injury and has been left with much reduced vision in his left eye. He has some cognitive dysfunction and also has major depression. He takes antidepressant medication.
According to the pre-sentence report, the offender “stated he accepted responsibility for his actions and did not attempt to pass blame”. The report assessed him as having a low risk of general re-offending. The report says he is suitable for an Intensive Corrections Order (an ICO).
The offender was assessed by a psychologist, Dr Huntley, on 15 November 2021. Dr Huntley performed a number of psychological tests. He estimated the offender’s premorbid abilities is lying in the average range. The testing revealed poor results in verbal memory and Visio spatial function and visual organisation.
The offender was seen by a psychiatrist, Dr Furst. His report is dated 26 March 2022. He made a diagnosis of a persistent neurocognitive disorder (which is an acquired brain injury) and a major depressive disorder.
Dr Jungfar, also a psychiatrist, saw the offender in October 2021. She also diagnosed a major depressive disorder, with comorbid anxious distress. She thought there was an organic component to the mood disorder.
Dr Gawariker is a consultant neurologist. When he saw the offender in December 2021, the offender was suffering from “short-term memory loss, poor attention span and inability to process new information”. The doctor confirmed the existence of a traumatic brain injury.
In a report dated 31 August 2022, Associate Prof Essex, an ophthalmologist, says that he has been caring for the offender in relation to “a penetrating injury to his left eye”. Surgery was originally required when two large fragments of glass were removed. When he was seen in August 2022 a left retinal detachment was identified which required surgical intervention. The doctor concludes:
His retina is attached although vision of very poor hand movements only. I think it is very unlikely there will be any further improvement in vision.
There is a report from Mr Catto, a clinical psychologist. He refers to the offender “experiencing difficulties with memory, forgetfulness, and impulsivity associated with purchases and spending money”. He suggested continuing rehabilitation. He thought there should be further sessions with a psychologist to “support ongoing adjustment”.
Ms Jones, a rehabilitation counsellor, sets out the difficulties that the offender is having in his current study. “Strategies in the classroom” are recommended.
There are a number of references put forward on behalf of the offender. They are from both family and friends. The references attest to his good character, his hard work and his care for people around him. A number of them talk of their trust in him as a driver. He may well be generally a good driver but he was not driving well on the night of the collision. One of the references ends in this way:
I hope everyone understands that it was an accident, and not done on purpose.
It is unquestionable that the collision was not done on purpose. But it was not, in the true sense of the word, an accident. As the jury has found it was a product of negligent driving.
The references talk about how the offender has changed since the collision. He has become reserved and isolated. He has expressed to many people his remorse about the collision and his sorrow for its consequences. I also accept that he has genuinely expressed a wish that he had been the victim rather than Alexis.
I have no doubt that the offender feels remorseful. The fact that he genuinely has no memory of the collision does not mean that he does not regret it and does not wish that it had led to such horrific results.
The offender has written a letter to the court. He expresses his deep remorse and guilt. He states that he has wanted to apologise to Alexis’s family for some time but it was made clear to him that contact would not be welcome. The text message sent to him is expressed in the strongest terms.
I understand it was intended that the letter to the Court would be read out by the offender. That did not occur on the advice of Mr Purnell having regard to the extreme emotions that had been expressed in Court. I think Mr Purnell’s advice was correct.
Thus looking at the offender’s subjective circumstances he is a young man from a good and supportive family who had started a career in carpentry but who through an act of his own negligence has been left with brain damage, cognitive disabilities, one very weak eye and major depression.
But of course there is another side to the story. The act of negligence has had the most terrible consequences. A young woman was killed. I have heard a number of victim impact statements. I am going to quote selectively from them. However I have taken the whole of them into account.
Ms Victoria Wood was the stepsister of Alexis. She has been diagnosed, since the collision, with PTSD, anxiety and depression. She describes the night of the collision while waiting for news of her sister. She says the family is “consumed with the thought that Alexis should be with us, frolicking in the sun, opening her Christmas or birthday presents, enjoying turning 18 or watching our little brother grow”. She concludes:
I can’t put into words the sadness that consumes me knowing we will never see her again because of a decision made by him not to keep her safe.
Another stepsister is Ms Michalya Wood. She said:
I lost my sister and best friend and my heart breaks immensely knowing she will never be able to live the beautiful life she would have lived. The impact Alexis’s death has had on me, my family and everyone that knew her is indescribable. The light in our life that is Alexis is gone and the damage that this man has caused will never be repaired.
Her stepfather, Mr Shane Wood, said:
she is a beautiful person. She had such a bright future. His reckless and negligent actions that night took her from this earth. She should have lived a long and happy life, surrounded by loved ones.
…..
We have to live the rest of our lives with lifelong psychological injuries that were caused by this incident and live with the grief and pain of not having her in our lives. We have to live with the reality that she will never fulfil her potential, she will not live her life.
Her mother, Ms Claire Wood, said:
I also note that this statement is to reflect “us” as victims. I would like to draw the court’s attention back to the real victim, Alexis. The only person, who no matter the outcome of the justice system, cannot have her voice heard, cannot go on to live a normal and happy life, who cannot go on to fulfil her dreams, cannot ever do anything ever again.
….
There are no words to describe what life has been like other than burning in the flames of hell. We have no recollection of the first year; it is a blur of horror and begging for death to release us from the eternal nightmare and torture. I can tell you what hell looks like – it is this.
We have all had to learn the most basic of human functions again. From eating to showering, speaking and talking to people, working and cleaning, driving and even leaving the house. We fail daily at these tasks, thoughts are muddled and horrific flashbacks plague our tortured minds, stop us in our tracks and we are there once again screaming crying begging for it not to be true. Then we are useless, to our families, our children, our colleagues and friends.
Alexis’s father described her. He said:
What amazed me about Alexis is her selflessness and humility. She was a genuinely caring and empathetic person. Attributes well beyond her years. She was always willing to help those less fortunate than her. She would give her own money to help a homeless person, or offer them some food. Even when I disagreed with her giving out her own money, she insisted it was the right thing to do. She advocated and championed for the fairness and equity of all people without any judgment.
Like other members of the family, Mr Saaghy has been diagnosed with PTSD, together with anxiety and depression. He is receiving treatment.
Another sister, Ms Scarlet Wood, said:
I am not going to see Alexis again. I was meant to live with her in Canada and travel to Japan with her, but I can’t do any of that now. I am so scared of being alone again, when my family is gone for too long I worry that something has happened to them. Whenever I am facing left in my bed all I can see is my sister in hospital again, all of the tubes up her nose and how bruised she looked. All I can do is cry, nothing I can do can change what happened to her. I’m so scared of my friends or family doing anything because I don’t want something to happen to them. All I can think about is what could happen. I feel so worthless knowing my sister won’t be here for me anymore.
Ms Emmalee Saaghy is Alexis’s aunt. She was very close to her niece. They were more like sisters. She said:
She was my smaller human, one of my people, she was everything beautiful about being a woman all wrapped up into one. She was growing and changing into this smart, strong, stubborn, caring, charming, courageous, talented, driven and sassy young woman. She was worldly beyond her years and knew where she wanted to go in life, she was open-minded and persistent. She loved to love and care for others. She was admirable, even at 16.
Ms Saaghy described her grief:
This complex grief cripples you physically, it’s the type that stops you from getting up in the morning and wakes you at night or makes you call in sick the next day. It’s the type that withdraws you from your closest people and leaves you alone in the dark.
Mr Christopher Sheehan is Alexis’s grandfather. He said (through Ms Claire Wood):
Our family, Alexis’ many friends, the many doctors, nurses, police, fire brigade and ambulance officers caught in the net of this violent death attended her funeral, trying to offer some comfort and support to each other. They still do. Over two years later the disbelief, shock and wild emotions are much unabated. The broken sleep, the idle good memories that soon turned bitter with the reality of death, the reluctance to engage with people, pursue new tasks, the empty chairs, anniversaries of shadows, the holes and silences remain.
Ms Maria Mura is Alexis’s grandmother. She said:
Alexis was my first grandchild and we had a close and special relationship. Alexis loved me and I loved her. Alexis was the kindest, sweetest girl who loved animals and was passionate about saving the environment. We spent many happy hours visiting art galleries, at environmental rallies, walking through the bush and playing at the beach.
….
Even though I am under the care of a GP and psychologist my mental health is seriously affected, invasive traumatic images and thoughts, anxiety and constant raw grief fill my day. I have become a recluse.
The theme that runs through all of the victim impact statements is twofold. Alexis was a bright and caring young woman, surrounded by loving family and looking forward to a successful and happy future. Secondly her death has had overwhelming consequences to her family who have, and will continue to suffer, from mental health issues such as PTSD and depression.
I should say at this stage that there are no victim impact statements in respect of Mr Dandash. His injuries were serious, as clearly found by the jury. But he minimised them in the trial, probably to assist the offender’s defence to the charges. He cannot be criticised for helping his friend.
So I am faced with sentencing a decent young man who has himself suffered serious injury but whose negligence caused the unnecessary death of a young woman.
Mr Purnell SC, on behalf of the offender, has urged me to impose an ICO, or a fully suspended sentence. He has pointed out that the maximum penalty of two years’ imprisonment for negligent driving causing death is an indication of the seriousness the legislature has attached to the offence. He is correct in that regard, but not entirely so. The legislature has still dictated the possibility of a full-time prison sentence and that must be seriously considered.
It is not enough to say the offence was, despite its tragic consequences, simply the product of an act of negligence. To do so would be to ignore the words of the offence, namely causing the death of a person.
In March of this year the offender offered to plead guilty to negligent driving. That offer was rejected, the prosecution preferring to pursue a conviction for culpable driving. Having regard to the ultimate conviction for negligent driving, the offender is entitled to a discount on his sentence, although his offer had been made at a fairly late stage of the proceedings. I think 10 per cent (slightly rounded off) is appropriate.
I have been provided with two roughly comparable cases: R v Chancellor [2019] ACTSC 191 (Chancellor) and The Police v Hutchinson (Unreported, Magistrates Court, 4 August 2022) (Hutchinson). In Chancellor, Mossop J sentenced a police officer who drove through a red light in the course of his duties and collided with another vehicle, killing an occupant, to five months’ imprisonment, but entirely suspended. There were very compelling subjective factors.
In Hutchinson an offender who killed a pedestrian at a pedestrian crossing was sentenced to seven months’ imprisonment. The offender was 59 years of age and did not have a criminal history.
Had this offender been convicted of culpable driving he would unquestionably have been put in prison and for some time. The fact that the driving was negligent, but not culpable, does not extinguish the possibility of a full-time prison sentence.
I must of course consider the young age of the offender and the need for his rehabilitation. He is undergoing rehabilitation through the support of his family and through his studies.
A very important consideration in this case is general deterrence. Young drivers must be made aware that they have an obligation to drive carefully for themselves, for their passengers and for other road users. It is not enough to say this was a case of simple negligence. It was negligence in driving too quickly in the prevailing circumstances and it was driving with little regard to the rules of his licence, in particular driving with more passengers than he was permitted.
Mossop J observed in Chancellor, at [57]:
So far as the purposes of sentencing are concerned it is particularly significant to recognise the harm done to the victim of the crime and the community, to denounce the conduct of the offender and make him accountable for his actions. While specific deterrence is not a matter of significance in this case, general deterrence must be a significant consideration. That is because it must be clear to those who have dispensations from the road rules that if they fail to take reasonable care, then they will bear significant consequences if those failures cause death to other people on the road.
Also relevant are statements by Refshauge J in R v Creighton (Unreported, Supreme Court of the Australian Capital Territory, 28 October 2010):
The driving of a motor vehicle is such an every day event that it is often forgotten how serious are the consequences of a failure to take due care in that task. This is starkly brought home in this case where a serious accident left two young people dead and another with serious injuries. It is often said that a car is potentially a lethal weapon. It became literally true in this case.
…..
I appreciate that no sentence I can impose will resolve the tragedy that the families of Ms Minney and Mr Rial are experiencing and the trauma suffered by Ms Taylor and her family. The sentence I impose should not in any way be seen as reflecting on the value of the lives of Ms Minney and Mr Rial. It would be wrong to attempt any such equation for our law simply does not allow that to be made, even were it possible. I have to judge Mr Creighton not merely according to the awfulness of the tragic results of his actions, but in accordance with the law and principles of sentence, which I must apply.
Ultimately I’m faced with this choice. Do the nature and consequences of the offence and the need for general deterrence exceed placing a young man, with positive chances of rehabilitation, with brain damage and a very damaged left eye and who has expressed remorse, into prison?
I have found the answer to this question very difficult to reach. My tendency has been in favour of full-time prison, in particular because of public deterrence.
Two matters have deterred me from this result: firstly young drivers contemplating driving negligently will, I hope, not need to be told that negligent driving can kill and hurt people, including themselves, their family and their friends. The facts of this case carry a very powerful message.
Secondly the prosecution has stated, in the clearest terms, that it does not advocate full-time prison. This concession is of great significance to me. This is what the prosecution said:
Nothing but a sentence of imprisonment for the offence involving death would give effect to the sentencing principles. The Prosecution notes that the offender has been found suitable for an Intensive Corrections Order.
Specifically, the prosecution has not said full-time imprisonment should be imposed.
Lest there be any doubt, an intensive corrections order is not a slap on the wrist. It is a sentence of imprisonment to be served in a particular way.
In relation to concurrency and accumulation between the two offences, normally there would be a significant degree of overlap because they arise from the same incident. However, in this case, I think it very important that the victims can see that specific punishment is made in respect of the separate charges.
The prosecution has brought to my attention a charge transferred from the Magistrates Court of contravening conditions of a driver’s licence. This relates to the number of peers in the vehicle. As I said earlier, I think that it is a very important element and the appropriate punishment, considering the maximum penalty of a $3,200 fine, is a fine of $2,500.
I make the following orders:
(i)For the offence of negligent driving causing death the offender is sentenced to 18 months’ (reduced from 20 months’) imprisonment to commence today and end on 27 May 2024.
(ii)For the offence of negligent driving causing grievous bodily harm the offender is sentenced to seven months’ imprisonment (reduced from eight months) to commence on 28 April 2024 and end on 27 November 2024.
(iii)The above sentences of imprisonment are to be served by way of an intensive corrections order on core conditions.
(iv)For the offence of contravening conditions of a driver licence, the offender is fined $2,500.
(v)I note that there will be an automatic disqualification of the offender’s licence.
| I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |