R v Kumar
[2019] ACTSC 263
•20 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kumar |
Citation: | [2019] ACTSC 263 |
Hearing Date: | 20 September 2019 |
DecisionDate: | 20 September 2019 |
Before: | Elkaim J |
Decision: | See [29] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Interference with a conveyance in circumstances dangerous to health, safety, or physical well-being – Illicit substances – Reduction of culpability |
Legislation Cited: | Crimes Act 1900 (ACT) s 28(2)(e) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 |
Cases Cited: | R v Pahl (No 2) [2017] ACTSC 155 |
Parties: | The Queen (Crown) Sandeep Shavinesh Kumar (Offender) |
Representation: | Counsel V Conliffe (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 88 of 2019; SCC 89 of 2019; SCC 96 of 2019; SCC 97 of 2019 |
ELKAIM J:
On 6 August 2019 the offender was arraigned on an indictment dated 5 June 2019. He pleaded guilty to Count 2 and Count 4, in full satisfaction of the indictment.
These counts both state that on 18 January 2019 the offender interfered with a conveyance, namely the driving of a vehicle, in circumstances dangerous to the health, safety or physical well-being of another person. I will refer to these charges as ‘dangerous driving’.
The offences are contrary to s 28(2)(e) of the Crimes Act 1900 (ACT) and carry a maximum penalty of 5 years’ imprisonment.
The offender has also pleaded guilty to the following offences:
(a) Driving a motor vehicle without consent (CC19/2081), contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $80,000, 5 years imprisonment or both;
(b) Driving unlicensed (CC19/2082) contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT). The maximum penalty is a fine of $3,200; and
(c) Driving with a prescribed drug in blood (CC19/2722), contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The maximum penalty is a fine of $1,600, a minimum 6 month licence disqualification and a default licence disqualification of 3 years.
The offender is entitled to a discount for his guilty pleas. Although not all the pleas were entered at the earliest opportunity, they do have a significant utilitarian value. I assess the discount at about 15%.
The details of the offences are contained in the Case Statement filed on 12 June 2019. The Case Statement effectively splits the offending into two incidents. In summary they occurred as follows.
On Friday 18 January 2019, Oliver Blunden was in the driver’s seat of his car, a white 1997 Hyundai Excel, in the suburb of Bonython. His girlfriend Tayla Meekin was in the passenger seat. Mr Blunden reversed from Ms Meekin’s driveway, put his car into forward gear and as he did so, saw the offender’s Subaru Impreza travelling toward him in the middle of the road at an estimated speed of between 40 – 60 km/h. Mr Blunden moved his car to the left of the lane to avoid a collision with the offender. The offender swerved and the front right hand side of the accused’s vehicle collided with the right rear bumper of the Hyundai.
After making a u-turn, the accused drove back to Mr Blunden’s car and again rammed his vehicle into the Hyundai, this time impacting the driver side door. A short time later the accused drove away. This incident makes up the first dangerous driving charge.
The second dangerous driving incident occurred about an hour later, at 11:05pm. Police sighted a black Subaru Impreza heading northbound on Drakeford Drive in Kambah. Police signalled for the driver to pull over. There then followed a bizarre series of driving manoeuvres by the offender culminating with him ramming a police car and injuring the officer within the car.
I assess both dangerous driving offences as being of medium objective seriousness.
The only explanation for the accused’s probably deranged and delusional conduct seems to have been the effect of illicit drugs. This does not reduce his culpability as explained by Chief Justice Murrell in R v Pahl (No 2) [2017] ACTSC 155.
The offender was born in 1990 in Fiji. He came to Australia with his parents when he was 10 years of age. He returned to Fiji to live with his grandparents in about 2010 but returned to Australia when they passed away. He does not seem to have had a very good relationship with his parents, although this has improved recently.
The offender left school in Year 11. He worked as an apprentice in an air-conditioning installation company until he was dismissed because the business was under pressure.
The offender started using drugs as a teenager. His use has been heavy at times in particular when he has been offending. He says he does not have a problem with alcohol.
The offender clearly has some mental health issues. He had a psychotic episode when he was taken into custody in January of this year. He blames his offending on his drug use.
The offender has expressed a wish to engage in residential rehabilitation, which will no doubt be of benefit to him. He has made arrangements to enter the Riverina Drug and Alcohol Centre. No bed is available for some months. Hopefully this facility or an alternative will be available when he is released.
Dr Clout, a clinical psychologist, has provided a report at the request of the offender’s legal representatives. Contrary to the Pre-Sentence Report, she records difficulties with alcohol in 2017. Another inconsistency is that the offender denied to the doctor any history of suicide attempts. She notes that his drug problems suffered a significant increase in severity in about 2014. They have led to psychotic episodes “and the severity of his behavioural dysregulation when under the influence”. She recommends residential rehabilitation. She also notes that the offender is capable of not using drugs when in custody. When he doesn’t use drugs his mental health improves.
The offender has now been in custody for some time and, consistent with the history he gave to Dr Clout, he is feeling much better. He has expressed guilt and remorse for his behaviour “and said he is very sorry for the impact his behaviour had on those involved”.
Dr Clout continues:
He reported that he didn’t intentionally mean to hurt anyone, and the incident had been a “wake-up call” for him to address his drug use.
I hope that he has indeed woken up, because he cannot continue in the manner he has behaved in recent years. He has an extensive criminal record in NSW. Since 2010 he has committed a wide range of offences, he has been imprisoned and once again, the only explanation is his use of drugs.
Dr Clout’s opinion is consistent with that of Dr Adams, whose now out of date report describes the effects of drugs on the offender and advocates the necessity for rehabilitation.
The offender has been in custody since his arrest on 18 January 2019, a total of 8 months and 3 days, or 246 days.
Sentencing requires consideration of ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) as well as the many aspects listed in s 33. Section 10 is also important because it says a person should not be sent to prison except as a last resort. As already noted however he has already been in prison for about eight months and there is no suggestion that anything other than a prison sentence is appropriate.
The victims of the first act of dangerous driving were strangers to the offender. There was no reason for him to, essentially, attack them. They would have been terrified, especially when the offender made a U-turn and came back. It is understandable that his actions were strongly influenced by the drugs he was taking. But that is no excuse. He voluntarily took the drugs. He must bear the consequences of his actions. The victim impact statement of the passenger in the first incident is a graphic statement of such consequences:
I feel as though there are constant threats to my safety. To this day I can not be alone in the dark. I can not sleep without a light on. I can’t be home alone. even during the day. I can no longer do open and close shifts at my job because of this deep fear of being alone and in danger. This impacts my ability to work. I have to sleep in a certain position to feel safe in my own room. I can’t get out of my car and walk into my own house in the dark alone. I can’t drive alone at night unless I am on the phone to either my partner or mother. To this day I still have panic attacks driving at night. To this day I can not do these simple things without feeling as though my life is in danger. These fears are disrupting my ability to function.
The police officer who placed his own life at risk in the second dangerous driving incident was doing so in the service of the public and in an effort to stop the offender committing crimes against other innocent people. The officer suffered some injuries, fortunately not extensive. Nevertheless the potential to have seriously hurt, or even killed him, existed.
Both parties said they had been unable to find any comparable cases to assist me in gauging sentencing patterns.
General deterrence is also important because people who take drugs must know they will lead them into dangerous activity where they will be injured and, more importantly, where there is a good chance that innocent persons, including police officers, will also be hurt.
I recognise that this offender, notwithstanding his criminal record, seems to be realising that he needs rehabilitation and is prepared to undertake it. I will reflect this element in a shorter than usual non-parole period.
I make the following orders:
(a)For Count 2 (SCCAN154/2019), the offender is sentenced to two years imprisonment (reduced from 28 months for the plea of guilty) commencing on 18 January 2019 and ending on 17 January 2021.
(b)For Count 4 (SCANN155/2019), the offender is sentenced to two years imprisonment (reduced from 28 months for the plea of guilty) commencing on 18 January 2020 and ending on 17 January 2022.
(c)For the offence of driving a motor vehicle without consent (CC19/2081) the offender is sentenced to 6 months imprisonment commencing on 18 January 2019 and ending on 17 July 2019.
(d)For the offence of driving unlicensed (CC19/2082) the offender is fined $1,000 with no time to pay.
(e)For the offence of driving with a prescribed drug in blood (CC19/2722) the offender is fined $500 with no time to pay.
(f)The total term of imprisonment is three years commencing on 18 January 2019 and ending on 17 January 2022.
(g)I set a non-parole period of 18 months commencing on 18 January 2019 and ending on 17 July 2020.
(h)I note there will be automatic licence disqualifications which should commence upon the offender’s release from full-time custody.
| I certify that the preceding twenty nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 23 September 2019 |