R v Saleh

[2023] NSWDC 639

District Court

New South Wales

Medium Neutral Citation:

R v Saleh [2023] NSWDC 639

Decision date:

29 November 2023

Jurisdiction:

Criminal

Before:

S Hanley SC DCJ

Decision:

Sentence

Legislation Cited:

Crimes Act 1900, ss 52A(1)(c),52A(3)(b)

Cases Cited:

Barnett [2014] NSW CCA 296

Clampitt-Wotton [2002] NSWCCA 383

Costello [2017] NSWCCCA 32

Markham v Regina [2007] NSWCCA 295

Moodie [2020] NSWCCA 160

Morabito [2007] NSWCCA 126

R v Errington (2005) 157 A Crim R 553

R v Hasna [2020] NSWDC 947

R v Whyte (2002) 55 NSW LR 252

Category:

Sentence

Parties:

Rex (Crown)
Mohammad Saleh (Offender)

Representation:

Mr A Isaacs, Counsel for DPP
Mr D Dalton SC, Counsel for Offender

File Number(s):

2020/00283092

Judgment

1. The offender Mohammad Saleh appears for sentence for two offences:

2. Dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 in that he drove at a speed dangerous to other person or persons. The offence has a maximum penalty of ten years imprisonment. There is no standard non-parole period. Claire Georgey was the victim.

3. Dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(b) of the Crimes Act in that he drove at a speed dangerous to other persons. The offence has a maximum penalty of seven years imprisonment. There is no standard non-parole period. Aaron Pritchard was the victim.

4. Each offence has an automatic licence disqualification of 3 years and a minimum disqualification of 12 months.

History

5. The offences took place on 7 September 2020. The offender was arrested on 30 September 2020 and spent 3 days in custody. I will take into account the time he spent into custody when sentencing him. He was initially charged with a co-offender Jim Malamas.

6. He was committed for trial from the Local Court on the 10 February 2022. He had been listed to stand trial on the 29 September 2022 and 16 January 2023. Both were vacated before the listed date. He was listed to stand trial on the 28 August 2023.

7. On the 21 June 2023 at the District Court during a Super Call Over the offender pleaded guilty to counts 2 and 4 on the Indictment. The Crown accepted those pleas in full satisfaction of the indictment. He had initially been charged with more serious offences. He appeared for a sentence hearing at this Court on 16 November 2023.

8. The co-offender pleaded guilty and was sentenced by me on the 21 June 2023 in the Super Call Over to an offence of drive manner dangerous (s 117(2) Road Transport Act 2013). I am satisfied the sentence imposed on that co-offender does not require consideration of the principle of parity in sentencing when considering the sentence of this offender.

Crown Tender

9. On sentence the Crown tendered:

Exhibit A, a Crown bundle including a statement of agreed facts, the offender’s criminal antecedents and the offender’s driving record, a Sentencing Assessment Report, dated 9 August 2023, by Kate Patterson, Victim Impact Statements from the deceased’s father, mother and sister.

Marked for Identification 1 was Mr A Isaac, Crown Prosecutor’s submissions on sentence.

Defence Tender

10. The offender tendered:

Exhibit 1, entitled “Defence Sentence Bundle” containing 13 items including:

• The written submissions on sentence by the offender’s counsel, Mr David Dalton SC (tab 13).

• Report from Dr Olav Nielssen, dated 20 August 2023.

• Clinical notes from Dr Monier Younan, Psychiatrist.

• Letter from Dr Kerrie Park, Chiropractor dated 3 August 2023.

• Traffic Offender Program certificate of completion.

• Many references from family, friends and employer.

Exhibit 2, a Report from Mr Chafic Awit, Psychologist, dated 18 October 2023, in respect of the offender’s mother’s mental health.

Exhibit 3, a Bail Conditions Chronology.

Exhibit 4, a further letter from Mahmoud Jomaa, the offender’s employer, undated.

11. I have received several decisions of the Court of Criminal Appeal relevant to aspects of the considerations to be undertaken in this sentence. I have also accessed the Public Defender’s Sentencing Summaries relevant to sentences imposed for these offences.

12. At the conclusion of the hearing on the 16 November 2023 I raised with the defence if they intended to make a submission that the offender suffered extra-curial punishment because of the injuries he sustained as identified in the agreed facts. The parties were given leave to provide further written submissions in respect of this issue if required. I have received additional medical material from the offender’s solicitor and written submissions from both parties. They will be MFI 3 and 4 respectively and the material is Exhibit 5.

13. I will take into account the maximum penalty as indicating the seriousness with which these offences are regarded by the community and as providing guidance in determining an appropriate sentence. I will take into account my assessment of the objective seriousness of the offending behaviour, the relevant factors identified by the guideline judgments of the New South Wales Court of Criminal Appeal and any particulars relevant to the offender.

Facts

14. The facts are set out in the Crown bundle, exhibit A. On 7 September 2020, the offender was the holder of an unrestricted class ‘HR’ licence and resided in Guildford NSW 2161. The co-offender, Malamas was the holder of an unrestricted class ‘C’ licence and resided in Greystanes.

15. The deceased and victim of count 2 is Ms Claire Georgey (born November 1997). She was aged 22 at the time of the collision and had been travelling home from work as the driver of a Subaru Forester Wagon registration CR-xx-xx.

16. The victim of count 4 is Aaron Pritchard (born April 1988). He was aged 32 at the time of the collision and was in the front passenger seat of the offender’s car.

17. The offender was driving a highly modified 1995 grey Nissan Skyline Sedan with registration CU-xx-xx. The vehicle was estimated to have 800 horsepower. The vehicle was classified as a high-performance vehicle and did not have an issued Compliance Certificate as it was not legally allowed to be driven on any road or road related surface due to its modifications. The modifications made to the vehicle were to improve its performance and ability to travel quickly. It was registered to the mother of the offender.

18. The co-offender, Malamas was the driver of a 2018 black Kia Stinger GT with registration NBx-xxx, fitted with a V6 twin turbo engine and classified as a high-performance vehicle. It was registered to his business.

19. Edward Skaf (born June 1973) was in the front passenger seat of this vehicle.

20. Betts Road, also known as the Cumberland Highway, is a main arterial road which travels from Liverpool to Constitution Hill. At the intersection of Betts Road and Bruce Street, there are 3 lanes which travel in the north and three lanes that travel in the south direction. North and south are divided by a raised median strip. There is a dedicated right hand turn lane for vehicles that travel north and seek to turn right into Bruce Street. The intersection is controlled by traffic lights but there is no right-hand turn arrow. There is only a round green traffic light. All roadway markings at this intersection were clear and easily recognisable. The traffic lights governing the intersection of Betts Road and Bruce Street were in working order.

21. The speed limit for this section of Betts Road at all relevant times was signposted 70km/h and clearly marked on the roadway in large numbers.

22. There were no defects with the road surface and the road conditions were dry at the time of the collision.

23. On the night of 7 September 2020, the co-offender Malamas and the offender met at Malamas’ residence in Greystanes with friends Aaron Pritchard and Edward Skaf. Shortly before 10:25pm they left Greystanes in Malamas and Saleh’s respective vehicles.

24. At 10:25.58pm the offender’s vehicle was captured by CCTV footage from Wentworthville Leagues Club, travelling eastbound in lane one along the Great Western Highway. The vehicle passed Mack Street, heading towards the Betts Road. At 10:26.00pm the co-offender Malamas’ vehicle was captured travelling past the same point, closely following the offender’s vehicle in the same lane.

25. At 10:28.04pm the offender’s vehicle was captured by a CCTV safety camera near the intersection of the Jersey Road and Old Prospect Road travelling southbound in lane two along Jersey Road. At 10:28.05pm Malamas’ vehicle was captured travelling past the same point, closely following the offender’s vehicle in the same lane. At 10:28.07 the offender’s vehicle was captured changing from lane two to lane one. At the same time, Malamas’ vehicle also changes from lane two into lane one and he was behind the offender’s vehicle.

26. At 10:30:03pm the offender’s vehicle was captured by CCTV footage from 21 Betts Road travelling southbound in lane three along Betts Road. At 10:30.04pm Malamas’ vehicle was captured travelling past the same point, closely behind the offender’s vehicle in the adjacent lane.

The Offences

27. At 10:31.02pm Claire Georgey’s vehicle was captured by CCTV footage travelling northbound along Betts Road and commencing a right turn into Bruce Street from the dedicated turning lane. The traffic lights at the intersection of Betts Road and Bruce Street were green. The offender was travelling close to 45km/hr over the sign posted speed limit of 70km/hr but not over 45km/hr.

28. At 10:31:04pm the front of the offender’s vehicle first came into view of the CCTV camera travelling southbound in lane three along Betts Road. At the same time Ms Georgey’s vehicle was clearly in the middle of the southbound lanes of Betts Road and nearing the end of her right-hand turn.

29. At 10:31.05 pm brake lights at the rear of the offender’s vehicle can be seen to be illuminated on CCTV and at 10:31.05pm the offender’s vehicle collided with Ms Georgey’s vehicle. A ball of flames erupted, and the vehicles spun out of control. Ms Georgey’s vehicle spun into a traffic light pole, knocking the pole completely out of the ground.

30. At 10:31.07pm Malamas’ vehicle was captured travelling past the same point in lane two before braking heavily and swerving to the right to avoid the collision. Malamas’ vehicle pulled over to the side of the road just past the offender’s vehicle, about 10-15 metres past the intersection.

31. The offender exited his vehicle through the side window and spoke to Sinan Alhermiz. He said “my, my teeth, my face, check my, my teeth, my face”.

32. Malamas and Skaf exited their vehicle and approached the offender who said, “Tell me what happened, how did the accident happen, cause I can’t remember, I can’t remember what happened, tell me please, what happened?”. They responded, “You were driving, it was green and then the other car was coming from the other side, she, um, ah, tried to, ah, turn right and then you hit her, but, but before that you tried to get out with her, so you took right, but you couldn’t”.

33. As evident from the photographs attached to the agreed facts it is apparent the offender’s vehicle and Ms Georgey’s vehicle had extensive damage because of the collision.

The Deceased - Claire Georgey

34. As a result of the collision, Ms Georgey was trapped in the driver’s seat of her vehicle for some time and suffered a cardiac arrest at the collision scene.

35. Constable Foord, one of the first officers on scene, found her lying on the footpath next to the damaged Subaru. She was unconscious and not breathing. With the assistance of an off-duty doctor and two off duty nurses, Constable Foord performed CPR on Ms Georgey for 15-20 minutes with subsequent return of faint spontaneous circulation.

36. Bilateral thoracotomies were performed on scene before Ms Georgey was conveyed to Westmead Hospital by ambulance. Upon arrival she was hypotensive and tachycardic and assessed as having free fluid in her abdomen (which suggested the presence of an abdominal bleed). She was taken to theatre for surgery immediately and found to have lost 200-250ml of blood secondary to a liver laceration and a 5-7cm tear in the fat surrounding her bowel. She underwent emergency surgery for internal bleeding. A CT scan revealed the following injuries:

• Left frontal scalp haematoma and periorbital swelling.

• Small haemorrhages in the 4^th ventricle and right parietal subarachnoid space.

• Fracture dislocation of the cranio-cervical junction and marked atlanto­axial dissociation with significant narrowing of the spinal canal.

• Wall thickening of the proximal small bowel in the left upper abdomen.

• Segment 5/6 liver laceration and subcapsular haematoma.

37. On 8 September 2020, Ms Gregory underwent further surgery for cranio-cervical spinal fusion and decompression as a CT scan showed intracranial haemorrhaging and a high cervical spine fracture with significant narrowing of the spinal canal which was compromising the spinal cord.

38. On 9 September 2020 Ms Georgey was taken back into surgery to remove internal packing and no further bleeding was noted. On 11 September 2020 another scan was performed which showed some blood flow to the brain, however she remained intubated, ventilated and in the ICU. Another scan was conducted on 14 September 2020 which showed no cerebral perfusion (absence of blood flow to the brain) consistent with brain death and at 3:15pm on 14 September 2020, Ms Georgey’s life support system was switched off and she was later pronounced deceased.

39. The coroner reported the cause of death to be multiple blunt force injuries consistent with the force of the collision.

Injuries to Aaron Pritchard

40. At the scene Constable Wojciechowicz checked Mr Pritchard who was trapped in the passenger seat. NSW Fire and Rescue arrived, removed Mr Pritchard from the vehicle and conveyed him by ambulance to Westmead Hospital.

41. Upon arrival at hospital Mr Pritchard was tachycardic and was taken into emergency surgery.

42. He suffered the following injuries:

• Open book pelvic fracture.

• Acetabular fracture.

• Rib fractures.

• A laceration to his spleen (2cm).

• Laceration to small bowel (with 35cm segment of necrosis).

• Left hip dislocation.

43. He underwent multiple surgeries between 8 September 2020 and 29 September 2020 when he was discharged. During one surgery 35cm of his small intestine was removed as it had become necrotic. In other surgeries he had pins inserted into joints including his pelvis, femur, and left knee.

44. Hospital records indicate Mr Pritchard was having nightmares related to the crash and spoke to a social worker about them. Upon discharge from hospital Mr Pritchard required assistance for his mobility from Allied Health.

Injuries to the Offender

45. The offender was trapped in the driver’s seat of his vehicle for a short amount of time. He was conveyed by ambulance to Westmead Hospital and discharged from hospital on 30 September 2020. He suffered right orbital, right maxillary, and right zygomatic bone fractures as well as a subconjunctival haemorrhage.

46. A mechanical examination was conducted on the offender’s vehicle on 9 September 2020 and it was reported, prior to the impact damage sustained to the vehicle, that there were no mechanical defects or faults on the vehicle which may have been a contributing factor toward the collision.

Witness Observations

47. One witness saw the offender accelerating and taking off quickly at about two or three sets of traffic lights prior to the collision.

48. Another witness was in his bedroom facing Betts Road and heard “cars revving loudly and spooling up”. He went out to his balcony and saw two cars accelerate quickly from the traffic lights at the Merrylands Road intersection. He saw one car in lane one and the other in lane three. The middle lane was empty. He observed, “It was so quick, they moved so fast it was like they blurred as they raced past”.

49. A third witness was standing out the front of her house on Betts Road and saw the offender drive past her “really fast” just before the collision. She first heard the offender’s vehicle before turning to look at it “and then it just screamed past”. She did not recall seeing any other cars however only saw the offender “for a split second”. She observed the offender “have friends arrive very quickly”.

50. A fourth witness was in his bedroom in his house on Canal Road listening to music with his headphones when “/ heard a car which was really, really loud screaming down Cumberland Highway, Betts Road I could hear him coming up. He went through, from memory, cause’ I actually counted the gears that he went through, probably around three or four that he got to, up to before I heard a really short screech and a massive, massive bang”.

Edward SKAF’s Interview with Police

51. On 14 September 2020, Edward Skaf, the passenger in the co-offender Malamas’s vehicle participated in an audio recorded interview with police. He told police the following:

“We were driving down the Cumberland Highway and then I was with my mate Jim just having a chat, literally, I still remember we moved in from the far-left lane into the middle lane and the car ahead which was a friend of Jim’s, he moved in and then in a split second he just t-boned this car that cut across the road there. We pulled up and I called 000”.

52. On 7 September 2020, Mr Skaf went to the co-offender Malamas’ residence. The offender was already there when Mr Skaf arrived. They decided to go and get something to eat at either Smithfield or Liverpool. The plan was “to follow each other”. Mr Skaf got in the passenger seat of Malamas’ vehicle. Aaron Pritchard was in the offender’s vehicle.

53. Mr Skaf said that as they were driving, the offender was in front of them as he and Malamas were “just chatting along”. They did not lose sight of the offender Saleh’s vehicle. As they approached the intersection of Merrylands Road and Betts Road, the co-offender Malamas was in lane one and the offender was in lane three.

54. They took off from the lights together and as they went downhill Malamas’ vehicle changed lanes. The offender’s vehicle was about 40-50 metres in front. The offender’s vehicle also changed lanes “and then he hit”.

55. When the collision occurred, Malamas drove around the vehicles and pulled up. Mr Skaf telephoned 000. Mr Skaf went to both vehicles to check on the occupants.

Arrest of the Offender

56. On 30 September 2020, the offender was arrested by police.

57. He did not participate in an electronically recorded interview with police.

Arrest of Malamas

58. On 14 October 2020, Malamas attended Parramatta Police Station where he was placed under arrest and cautioned.

59. A form of demand was placed on him, and he told police he was the driver of the Kia at the time the collision occurred but that he was not involved in the collision. He refused to answer any further questions.

Mandatory Testing

60. There were no drugs detected in the blood sample of the offender.

Objective Seriousness of the Offences

61. Both parties have addressed me in writing and orally in respect of this important exercise in the sentencing process. The guidance provided by the Supreme Court of New South Wales identifying the factors to be considered in this assessment is well settled. Both parties have referred me to the guideline judgment of R v Whyte (2002) 55 NSW LR 252 that identified several factors that arise for consideration as “a check or sounding board” in a typical case involving these offences. Each case to some extent turns upon its own facts. The circumstances surrounding these offences vary within a broad range of probability. In considering the Whyte factors in the typical case the Crown submits:

1. The offender was aged 32 at the time of the offence and could not be considered a young offender.

2. He was not a person of good character as he had criminal convictions dating back to 2006 including driving offences. He has a poor driving record with numerous convictions including driving whilst disqualified, aggravated burn out, negligent driving, 6 speeding, numerous other offences of disobedience of the traffic rules. He has been suspended on 5 occasions because of accumulated point demerits and was declared a Habitual Offender in 2011.

1. The death occurred to a single person.

2. The deceased victim was a stranger, but the passenger a friend.

3. The offender suffered injuries as did his passenger to which count 4 applies.

4. The offender’s plea was late approximately 2 months before the trial and 9 months after the original trial date was listed.

62. The parties have disagreed in respect of the percentage reduction for the utilitarian benefit determined by the Act to be given to the offender when assessing the timing of his pleas of guilty. The Crown submits in these circumstances it has limited utilitarian value. That is a distinct issue to determining whether he is genuinely remorseful, and I will address that later when considering mitigating factors.

63. The Crown submits in considering these factors the offender is not a typical offender as considered by the Court in Whyte but an atypical offender. Consequently, does not fall within Whyte’s assessment of penalties in a typical case where the offender’s moral culpability is high in the case of death a full-time custodial sentence less than 3 years and in cases involving GBH less than 2 years would be generally inappropriate.

64. The guideline judgment also identified several factors that aggravate and impact upon the objective seriousness and moral culpability of an offender. In considering those factors it is accepted there was excessive speed and that was the major contributor to the offences.

65. Mr Dalton SC concedes the offender’s high speed was an abandonment of responsibility and demonstrated a high level of moral culpability by the offender in the commission of the offences but submits I would take into account his driving occurred over 625 metres from the time he accelerated from traffic lights until the collision. He submits that even if the offender were travelling at 110 kph this occurred for a period of 20 seconds until the collision.

66. In considering that submission, I am satisfied there was a considerable period for the offender to have observed the deceased executing a lawful turn in an area she was familiar with and entitled to have an expectation that she could do so safely if the oncoming traffic were observing the road speed limits. I note in the SAR the offender attributed speed and his driving reaction time as contributors to the collision.

67. The length of the journey as identified by Mr Dalton SC must be considered in the context the offender was driving at this excessive speed on a major road where it was reasonable to expect other drivers would be present and potentially put at danger. Whilst I accept this factor limits the period and distance over which other users of the road were placed in immediate danger by the offender, the collision and its fatal consequences demonstrate the limitation of that consideration. The observations of the witnesses of the offender’s earlier manner of driving at speed at times and prior to his acceleration away from the green lights resulting in the collision indicate his driving at speed was not an isolated occasion on that night.

68. Another factor raised by the Crown to be taken into account was the offender’s motor vehicle had been so extensively modified to increase its power so that it was incapable of being lawfully registered to drive on public roads. Mr Dalton SC submits this has no impact on this assessment as the speed the vehicle was travelling could have been achieved by the vehicle without any such modifications.

69. I agree with Mr Dalton SC’s submissions however the nature of the vehicle’s modification, the observations of the witnesses of the offender’s driving leading up to the collision as recited in the Agreed Facts and his extensive history of speeding offences indicate he had an inherent interest in driving on public roads at a speed that was unlawful and potentially dangerous to other road users.

70. I accept some of the other aggravating factors identified in Whyte including being intoxicated or under substance abuse, driving erratically or aggressively, or driving competitively or showing off are not present.

71. Mechanical inspection on the offender’s motor vehicle revealed there were no mechanical failures or defects which might have been a contributing factor to the collision. The cause of the collision was the significant speed the offender drove his vehicle resulting in the fatal collision. The victim had almost completed the turn. Had the offender driven at the permitted speed limit she would have completed it safely.

Drive Manner Dangerous Causing Grievous Bodily Harm

72. This offence requires an assessment of the injuries sustained by the victim. The passenger and friend of the offender, Aaron Pritchard. I have not received a Victim Impact Statement from Mr Pritchard. However, I have details of his injuries as set out in the Agreed Facts. They are serious injuries as particularised between (41- 48) thereof.

73. Despite the absence of a Victim Impact Statement from Mr Pritchard I am satisfied the nature of his injuries, operations required and subsequently reported nightmares he was suffering allow me to infer with confidence that he will suffer the consequences physically and mentally for some considerable time and possibly for his lifetime.

Moral Culpability

74. In assessing the moral culpability of the offender and degree to which he abandoned his responsibility I take into account the following observations by Justices of the NSW CCA that identify this is a nuanced undertaking. I note the following:

75. In R v Errington (2005) 157 A Crim R 553; Mason P commented that:

“There are shades and gradations of moral culpability in different instances of the offence, and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.”

76. The observations of Hidden J Markham v Regina [2007] NSWCCA 295 at [25] and [26] respectively where his Honour observed:

“The expressions “abandonment of responsibility” and “high moral culpability” employed in the guideline judgment in Whyte are useful, but they are necessarily flexible. It was not intended that they become terms of art in this branch of sentencing law”.

and, it is also important to bear in mind what the Chief Justice said in Whyte at [232]:

“The guideline is, to reiterate, a “guide” or a “check”. The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act.”

77. The ultimate question is what impact the relevant factors have upon assessing the offender’s moral culpability in the commission of these offences. His counsel in his written submissions (MFI 2) acknowledges in assessing this consideration “it is accepted that there is a high level of moral culpability”.

78. The Crown submits at [30] MFI 1:

“The manner of driving and the atypical features of this case when compared to those identified in typical case in Whyte, would result, in the Crown’s submission in the finding that the moral culpability of the Offender is significant and represents an abandonment of responsibility. That finding would lead to an assessment that the objective gravity of these offences would fall above the mid-range of objective seriousness for offences of this kind.”

79. I am satisfied taking into account the factors I have identified that the offender’s moral culpability was significant and represents an abandonment of responsibility to the extent the objective gravity of each offence falls above the mid-range for offences of this kind.

AGGRAVATING FACTORS

Prior Criminal and Driving Record

80. I have referred to the extent of the offender’s unfavourable antecedents. They do not aggravate his offending but disqualify him from leniency. He has demonstrated by his history of continual disobedience of the Road Rules that he has little regard for the safety of the community for which they are primarily designed to ensure. His driving history has demonstrated he is a danger to the public.

MITIGATING FACTORS

Plea of Guilty

81. His late plea of guilty at the Super Call-Over occurred after two previous trials had not proceeded and a third trial had been listed has an impact upon his entitlement to a reduction in an otherwise appropriate sentence pursuant to the Act to recognise the utilitarian benefit to the community.

82. The Crown submit the offender is entitled to a 5% reduction in sentence as determined by the Act s 25D(2)(c) in view of the fact the trial had been listed on 2 prior occasions and therefore s23D(2)(b)(i) is not applicable.

83. The defence submit he is entitled to a reduction of 10% pursuant to the latter referred to section because of the prospective trial being listed 2 months after the pleas were entered.

84. Mr Dalton SC also argues that at the Local Court the offender offered to plead guilty to Count 2 if Count 4 was placed on a Form 1, but this was rejected by the DPP. I note conversely the offender did not offer to plead guilty to both counts as he has before me at the Super Call-Over. That failure is difficult to understand in view of the ultimate submission by Mr Dalton SC that an aggregate sentence would fall within a range (3 years) and allow consideration of an ICO. That possibility would only be available if the offender was to be sentenced for two offences as opposed to one. The pleas of guilty by the offender to the 2 offences before me for sentence were entered by the offender at the Super Call-Over and accepted in satisfaction by the DPP.

85. I accept the conduct of the matter was complicated by the inclusion of Malamas as a co-accused at the previous listed trials and the adjournments were primarily because of the way his defence was managed.

86. I propose to allow the offender a 10% reduction of each sentence to recognise the utilitarian benefit to the community. However, I note that on 2 prior occasions the prosecution and the victims’ family had to prepare for a trial.

87. In respect of his pleas of guilty being entered at the Super Call-Over I do not propose to ascribe a percentage reduction in his sentence. I will take it into account as advancing the interests of justice and note the process afforded him the opportunity of a forum in which negotiations with the DPP resulted in the aggravated forms of the offences not proceeding to trial.

Remorse

88. Dr Nielssen, in taking a history from the offender, took him through his history of criminal and driving offences. I note the offender demonstrated an inclination to provide an excuse for his behaviour in respect of this offence and the others discussed with Dr Nielssen. Examples include:

89. Dr Nielssen reported (page 2):

“When asked about his state of mind that day, Mr Saleh said that he was concerned about his friend (it was the anniversary of the death of Malamas’s father) and was also affected by thinking about his late father and visiting his friend’s father’s grave site.”

90. In respect of his prior driving offence with his motor vehicle, Dr Nielssen reported (page 3):

“He said that in 2015 he was charged over doing a “burnout”, which was around the time his father was terminally ill.”

91. In respect of the illegal alterations to the motor vehicle he was driving, Dr Nielssen reported (page 2).

“Mr Saleh confirmed that he was driving a Nissan Skyline, which he said had been modified by a friend who had a mechanical business.”

92. He did not acknowledge he must have requested and authorised these alterations.

93. Despite this tendency on the part of the offender I am asked to take into account that he is remorseful for his offending and has accepted responsibility for his offending. In that consideration I am asked to take into account the following:

94. The offender has expressed his remorse for the deceased and her family in his letter of apology and his remorse for Mr Pritchard. These sentiments are confirmed by the many referees who have provided testimonials tendered on his behalf in Exhibit 1.

95. Mr Dalton SC urges me to take into account the Sentence Assessment Report dated 9 August 2023, wherein its author Ms Patterson reports under the heading “Attitudes” on page 2:

“Mr Saleh accepted responsibility for the driving offence and did not excuse his offending behaviour or minimise the severity of his actions. He identified that speeding contributed to the accident and his driving reaction time.

Mr Saleh additionally described himself as impulsive and pompous in the period prior to the index defence impacting his decision-making.

Since the time of the offence Mr Saleh has taken it upon himself to complete the Traffic Offenders Rehabilitation Programme and engage in psychological intervention, which has been verified.”

96. Whilst it is refreshing that the offender acknowledges he was previously “pompous” it is unfortunate it required the death of one person and occasioning of serious injuries to another for him to come to that realisation. The Sentencing Assessment Report author also noted under the heading “Driving” also on page 2:

“Mr Saleh acknowledged that he was driving recklessly at the time of the index offences and now understands the consequences to his actions.”

97. And under the headings “Responsivity” and “Insight into impact of offending” she notes:

“Mr Saleh express regret regarding the index offences and stated that he had been careless to the consequences of his behaviour at the time.

He verbalised the impact his offending behaviour has had on both victims and their families describing the physical and emotional pain caused to them.

Mr Saleh additionally disclosed the psychological toll the accident has had on him reporting to feel shame and guilt regarding the lasting impact of his actions.”

98. Despite some reservations concerning the offender’s ability to fully accept responsibility for his offending behaviour generally I accept in respect of these offences he is remorseful and has accepted responsibility for his offending.

99. I note however, that the family of the deceased have prepared for a trial on two prior occasions before he entered his pleas of guilty to the current charges. I accept they have now been spared the emotional toll of having to relive that horrific experience. I will take his pleas as a demonstration of his remorse.

Subjective Background

100. This is primarily set out in the report prepared by Dr Nielsen. The offender is the third of his parents’ seven children. He had a difficult early childhood in a Shia township near Baghdad, which was a dangerous area. He described his father as “a very tough man … he was hard on all of us … he came from a bit of a military background” and was affected by his service in the war with Iran between 1984 and 1988.

101. His father came to Australia as a refugee, and the family joined him the following year, when he was aged ten. He reported difficulties adjusting to a new language and culture. However, he said “it was also a relief to get out of where we were”.

102. His father served in the Iraqi Army and became an Arabic language scholar and university professor and taught at a mosque after coming to Australia in 1997. His mother became a driving instructor.

103. He reported a difficult childhood, because of the danger faced by the family, and his father’s abusive behaviour, including episodes of severe physical abuse. The domestic violence continued after the family moved to Australia, and his father was sent to prison in Australia after being charged with violence towards his mother. His father died in January 2016.

104. After arriving in Australia, he attended a year of English instruction before going to Fairfield High for three years. After leaving school he worked collecting trolleys at a supermarket and for a mechanic, and for the ten years up to the Covid pandemic worked in construction, which included as a concreter, and installing shelving and mezzanine floors in warehouses and homes.

105. He reported several long relationships and said that his sister-in-law introduced him to his future wife, who works in day care, and they were in contact for a year until they married several months prior to the interview. They do not have any children.

Drugs and Alcohol

106. There are no current drug or alcohol issues. He drank alcohol in social settings in early adult life but stopped drinking from his mid-twenties. He smoked cannabis as a teenager, has a single conviction for possession at the age of eighteen, but stopped using soon afterwards. He reported some use of methamphetamine and cocaine up to the age of twenty, but not since. He denied abuse of medication, including sedatives or anabolic steroids.

107. He confirmed a history of a brief period of gambling on poker machines when he was younger but denied other gambling.

Medical

108. The offender has residual injuries from an accident in 2010 when he was a passenger in a motor vehicle, including back pain, for which he saw a chiropractor regularly.

109. He did not report a head injury in the previous accident. He was aware of problems with his memory since the most recent accident, which left him with plates in his face that were not to be removed.

110. He did not report any symptoms of neurological disorder, including seizures, and valproate had been prescribed as a mood stabiliser rather than for epilepsy and his regular medications were duloxetine and valproate, and he took pain relief as required.

Mental Health

111. He first saw a psychologist and psychiatrist after an accident in 2010 in which he was a passenger. He was prescribed the antidepressant duloxetine (Cymbalta) but was able to withdraw from that medication after several years.

112. He became severely depressed after the recent collision and as a result referred to his current treating psychiatrist, Dr Monir Younan, and resumed the same medication and the mood stabiliser valproate (Epilim). He said he believed the mood stabiliser had helped with mood swings.

113. His recent symptoms of depression include not sleeping well, waking frequently in an anxious state through the night, lost appetite, and weight at various times, then gaining weight from overeating. He reported anxiety throughout the day, avoided many situations and relied on friends and family for transport. He tried to keep himself busy but found it difficult to focus.

114. He was briefly admitted to a psychiatric ward in Westmead Hospital after the accident, when he attempted suicide by cutting his wrists. He was arrested on his discharge and has continued to experience thoughts of suicide but has been more in control since resuming medication.

115. However, he does not report typical symptoms of psychosis, for example, auditory hallucinations or holding beliefs he later recognised to be false.

116. Dr Nielssen reviewed his medical history and reported Dr Pickering made a diagnosis of post-traumatic stress disorder and recommended continued treatment with duloxetine. Dr Younan found Mr Saleh to be depressed, elicited a history of episodes of elevated mood, and made a diagnosis of bipolar disorder. He recommended continued treatment with duloxetine and added valproate as a mood stabiliser. In his letter dated 27 June 2023, Dr Younan noted that he had seen Mr Saleh on 31 occasions, and his final diagnoses were persistent depressive disorder, bipolar disorder, and PTSD.

117. Ms De Santa Brigida’s assessment took place four months after the accident. She concluded the offender had complex trauma from abuse by his father while he was growing up, post-traumatic stress disorder from the two car accidents, and features of major depression, panic disorder and generalised anxiety disorder. She did not report on the results of cognitive testing.

118. Based upon the reporting of the offender and after reviewing the reports I have referred to Dr Nielssen diagnosed the offender as suffering from depressive illness, anxiety disorder (post-traumatic stress disorder), and possible bipolar disorder.

119. Dr Nielssen opined the absence of admissions to psychiatric hospitals, or of periods of sustained abnormally elevated mood requiring treatment with sedative or antipsychotic medication, is consistent with the offender not reporting being in a manic state around the time of the accident. (my emphasis).

111. He confirmed the offender reported his state of mind on the day of the offences was affected by the events of the day and his concern for his friend, but up to that time he had largely recovered from the episode of anxiety and depression that followed the previous accident. He did not report feeling agitated or any kind of urge to drive in a reckless way. He was also not affected by alcohol or any kind of drug.

112. The offender reported he became very depressed after the accident, confirmed by Dr Younan, and resumed treatment with a high dose of antidepressant medication. He has been able to resume work on the family home, and his mood has improved sufficiently to allow him to meet his future wife and get married. Dr Nielssen opined:

113. “With regards to further care, Mr Saleh has a combination of disorders that are likely to be long term, and he should continue his current medication regime for the foreseeable future, and only withdraw from medication under the supervision of a psychiatrist. He would also be likely to draw considerable benefit from ongoing supportive counselling, either by Dr Younan, or by a psychologist with expertise in the management of anxiety disorder.”

114. I am satisfied at the time of the offence the offender was not suffering from any medical or mental health issues that could have impacted upon reducing his moral culpability in the commission of the offences.

115. I will take into account his past and current mental health issue in the general mix of subjective factors. I accept and will take into account he has been significantly and adversely affected by the offence and the realisation that he has caused the death of Claire Georgey resulting in significant trauma for her family and the injuries to his passenger, Mr Pritchard. I accept the guilt he feels will continue to adversely impact upon his well-being.

116. The numerous referees who have supplied testimonials on his behalf have mentioned aspects of his personal life, their relationship and interaction with him, in a positive way. Although none appear to mention their awareness of his criminal and driving records.

Prospects of Rehabilitation and Likelihood of Reoffending

126. The offender is aged now 35 years of age. He has a wife and accommodation. He has substantial support within the community and his family. He has regularly been employed and has currently been working as a full-time sub-contractor and wholesaler. He has employment available.

127. He is regarded as an industrious and a highly regarded employee. There are no issues with illicit drugs, alcohol, or gambling.

128. The presence of these factors indicates a positive foundation that should ensure he will not re-offend. He has been assessed by the Sentencing Assessment Report author as a low risk of reoffending.

129. Despite his prior offending I accept this offending and its consequences have had such an affect upon him that he is a low risk of reoffending.

130. He has demonstrated significant remorse and insight into his offending behaviour. He is seeing a psychologist and taking medication. He has undertaken volunteer community work with “Brothers in Need”.

131. He has undertaken the Traffic Offender’s Program somewhat belatedly (July 2023) considering his poor driving record.

132. I am satisfied he has good prospects for rehabilitation.

Delay

133. The offences occurred in September 2020. Over three years have passed during which the offender has had the opportunity to live within the community although on restrictive bail and demonstrate he has rehabilitated himself.

134. He had the opportunity to offer to plead guilty to the offences he has ultimately pleaded. I have commented upon that inexplicably failure in the context of his counsels’ submissions as to the appropriate sentence that would be potentially more available if there were two principal offences that may allow the possibility of a sentence of three years and disposal by an ICO.

135. The matter has been hanging over his head but not because of those factors that are accepted as invoking additional leniency. I am not satisfied the delay between the offending and sentencing is of the character that allows for a reduction in sentence. It has resulted in advantages for him in respect of being at large in the community, undertaking rehabilitation and receiving treatment for his mental health.

Extra Curial Punishment

136. The Agreed Facts noted the injuries sustained by the offender. After the hearing I received further medical material in respect to the injuries sustained by the offender because of the collision.

137. The Crown submits this medical material does not reference any ongoing affect that the injuries have on the offender as of 23 November 2023, and goes no further than the offender’s discharge date on 30 September 2020, over three years ago.

138. I accept the Crown’s submission there is nothing contained within the medical material which indicates any impact the injuries have on the offender in terms of required ongoing treatment as of 23 November 2023. There is no recommendation in the medical material by the discharge doctor as to outpatient treatment for the offender.

139. As a result, there is no evidence before the court of the offender receiving treatment, as of 23 November 2023, for injuries suffered by the commission of the offence on 7 September 2020 which the offender is now to be sentenced.

140. The MRI report dated 15 October 2020, discloses findings in relation to the offender’s right hip and right knee. However, as the Crown observes there is no evidence whether the impressions noted to the offender’s hip and knee were a direct result of the offender’s actions on 7 September 2020 and there does not appear to be any reference to any injury to the offender’s right hip and right knee in the medical material provided.

141. The MRI report does not identify any ongoing affect that the impressions to the offender’s right hip and right knee have on the offender as of 23 November 2023 nor does the report identify any required treatment for the offender’s right hip and right knee from 15 October 2020 onwards.

142. The Crown submits:

There is nothing contained within the medical material or the MRI report that would alter the Crown submission that full time custody is the only appropriate sentence to be imposed; and

There is nothing contained within the medical material or the MRI report that supports any submission that the offender suffered extra-curial punishment because of the injuries he sustained on 7 September 2020.

143. Whilst I accept the Crown’s submissions in respect of any ongoing impact on the offender because of the injuries sustained, I will take into account in the general subjective factors those injuries identified in the Agreed Facts would have been painful and had a deleterious impact upon him for a period but accept there is no evidence they are ongoing.

Conditional Liberty (Onerous Bail Conditions)

144. The Chronology of his bail conditions is set out in Exhibit 3. Mr Dalton SC submits I would accept these were onerous restraints upon his conditional liberty and should be taken into account to further reduce any term of imprisonment (MFI 2 [26]). He submits the first nine months of his bail was of such a character that I would accept it equates to a quasi-custodial sentence.

145. Mr Dalton SC in his submission relies on R v Hasna [2020] NSWDC 947 at [44] – [47] where Tupman DCJ applied a discount of 40 to 50% of full-time custody to comparable restrictive bail conditions absent electronic monitoring and daily reporting conditions for an initial period during which the 50% discount was applied and thereafter when the reporting condition was reduced to three times a week and that offender was allowed to leave the house for any person if accompanied by approved persons the application of 40%.

146. I accept he was limited by what was in effect a curfew for a significant period. However, these restrictions need to be balanced with the fact he has been at large for a period of over 3 years since the commission of these offences and was able, during this period, to take up employment, socialise with his family and friends, attend the mosque, commence a relationship and marry, and seek psychological treatment for the trauma he experienced dealing with the consequences of the collision. It also allowed him to demonstrate his genuineness in desiring to achieve rehabilitation.

147. I will take it into account in the mix of mitigating factors, but I do not intend to ascribe a percentage equivalent to full-time custody.

Hardship in Custody

148. It is accepted the harshness of imprisonment is exacerbated for those prisoners who suffer from mental illness or disability. I accept the offender’s mental health issues and disorder as identified by Dr Nielssen would increase his hardship in custodial institutions. Dr Nielssen opined “imprisonment would exacerbate the sentence of his already disabling and depressive illness and he would be unlikely to receive ongoing counselling” (page 7). It is a factor I propose to take into account as a mitigating one.

Hardship to Others

149. Mr Dalton SC submits the offender’s care and support for his mother with whom he lives, and who suffers depression, including psychotic episodes particularly when severely stressed, which occurred when he was incarcerated in 2020 is a matter, to be taken into account in this regard.

150. I have read the report of the psychologist, Mr Chafit Awit, dated 18 October 2023, in respect to the offender’s mother’s mental health and the role of the offender in caring for her.

151. Mr Dalton SC submits, and I agree, that whilst the hardship to the offender’s mother may not fall within what could be characterised as exceptional hardship if he were incarcerated, it is still a mitigating factor to be taken into account and I will do so in the general mix of subjective factors.

152. I note it is reported the offender’s mother was distressed by his absence when he was in custody for 3 days. I commented in the hearing that her loss should be compared to the lifelong loss of the deceased for her parents, sister and partner.

SENTENCING PRINCIPLES

153. Before proceeding further, it is important to acknowledge the victim, her life, and the impact upon her family. The statements made by members of her family in their Victim Impact Statements have not been made public as they were not read in Court. I have enquired of his counsel as to whether the offender has read them. I am informed he has. I have had the opportunity to read them, and acknowledge they demonstrate the enormity of the impact of their loss because of the death of their daughter and sister. No words can adequately express that loss nor can the commiserations by others. Each demonstrated how profound the impact will be on their lives forever.

154. The Victim Impact Statements were of such a profound and personal nature in describing the victim, it is easy to envisage she was a wonderful young woman commencing a new and potentially significant relationship. She will not experience the life she should have had with all its highs and lows nor the opportunity to achieve her potential. Her family will be without her in their lives. They will not share the mutual enjoyment with her of having a family. Their lives have an emptiness that is incapable of being filled. Her mother and sister have, in the following passages from their combined Victim Impact Statement, succinctly identified their loss, the tragedy, and the unfairness they feel:

“The destruction of her life has resulted in many lost chances. She has been denied the chance to become an aunty, a mother, a university student, a school counsellor, a world traveller, let alone a young person thriving as she navigated her 20s. We continue to live on and strive to keep her memory alive, yet the drivers are still here existing among us, creating new memories, spending time with families, seeing new children brought into the world. They continue to be provided with opportunities, despite taking so many away, both from Claire and her loved ones left to grieve her.”

And,

“The loss of Claire was unnecessary and completely avoidable, yet due to the intentional actions of the drivers, the ripple effect of her loss is far reaching and all of those who drift along in her wake are unlikely to ever truly find closure and healing”.

155. This tragedy and its impact on the victim’s family and friends, I acknowledge, on behalf of the community.

156. I accept the offender’s family have also been affected by the events on many aspects of their lives. Part of their suffering is the emotional and psychological impact upon the offender who is having difficulty coming to terms with causing the death of Claire Georgey and the impact it has had upon her family.

157. In sentencing offences such as this, I adopt the observations of Bell P (as he then was) in Moodie [2020] NSWCCA 160 where his Honour identified the difficulty in sentencing such offenders [109]:

“In approaching the sentence of re-sentencing in cases involving death or dangerous driving, has frequently been said………… judges are asked to perform an impossible task as no human life can ever be equated with a period of imprisonment and no gaol term can return a loved one. A life should never be measured simply by the punishment metered out to an offender. The sentencing discretion must reflect an adequate punishment, recognise the harm done denouncing the conduct of the offender but also reflect the objective seriousness of the offence, the offender’s moral culpability, his or her prospects of rehabilitation likelihood or unlikelihood of future offending”.

158. I am satisfied that irrespective of any sentence I impose upon the offender he will remain affected psychologically by the consequences of his actions on the victims and their families.

159. No penalty imposed upon the offender will be sufficient in any way to measure the loss to the Georgey family or even appear proportionate to their loss. No penalty will relieve the offender of his post-traumatic stress.

160. I am required to sentence the offender by reference to the maximum penalty taking into account an assessment of the objective seriousness of the offending and those factors I have identified as relevant by reference to the particulars of the offending, the offender and as identified in the guideline and other referred to judgments in the New South Wales Supreme Court.

161. I am also required to take into account all those matters I have identified as relevant, including those falling under Part 3 of the Crimes (Sentencing Procedure) Act including his plea of guilty that results in a reduction in sentences as directed by statute.

162. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act. They are varied and the emphasis to be placed on anyone will depend upon the facts, assessment of culpability and particulars relevant to the offender.

163. In respect of offences of this kind, general deterrence must be emphasised to dissuade other like-mind offenders from offending. That purpose has some relevance in the sentence to be imposed. In the community speed is too frequently the cause of death or serious injuries caused by motor vehicles. There is a need for significant sentences to be imposed for offences of this kind to dissuade other like-minded offenders with an interest in driving at speed and endangering other motorists and pedestrians.

164. I am satisfied in view of the offender’s terrible driving record there remains a need to significantly emphasise specific deterrence in the sentence imposed. I accept to some extent these offences, their impact, and his progress through the criminal justice system provides some specific deterrence.

165. Rehabilitation still has some purpose in this process. Whilst I am satisfied it is unlikely he will re-offend, his rehabilitation addressing his mental health needs to be recognised in the sentence imposed.

166. The protection of the community is an important purpose to be addressed. In my assessment, the impact of the offending upon him is likely to ensure he no longer poses a threat to the community.

167. The application of retribution and denunciation also need to be included in determining an appropriate sentence.

168. The parties agree that s 5 of the Act threshold is crossed and only a custodial sentence is appropriate. In the guideline judgment R v Whyte at 299 the Court noted:

“Where the offender’s moral culpability is high, a full-time custodial sentence of less than three years (in the case of death), and two years, (in the case of grievous bodily) would not generally be appropriate”.

169. The Crown submits these ranges of sentence refer to the presence of those factors the court identified as representing a typical case. The Crown submits the absence of all but one of those factors results in this being an atypical case that also has the aggravating factors I have identified.

Comparative Sentences and Statistics

170. I have been provided with and had access to comparative cases, JIRS statistics and those summaries of appeals as set out in the Public Defender’s Sentencing Tables. In addition, the Appendix to the judgement in Moodie [2020] NSWCCA 160 sets out in summary form several sentences imposed for offences of this kind with reference to their particular and important factors. I accept these provide assistance in determining an appropriate sentence, but there can be identifiable differences that account for differences in sentences imposed.

171. On inspection of the Public Defender’s Sentencing Tables I note offences contrary to this section where custodial sentences more than two years were imposed involved some of the factors identified are relevant to this offender and the nature of his driving. There are a combination of factors present in the circumstances concerning this offender, including excessive speed, (Costello [2017] NSWCCCA 32); multiple victims (Barnett [2014] NSW CCA 296), (Morabito [2007] NSWCCA 126) and (Clampitt-Wotton [2002] NSWCCA 383); significant driving and/or criminal records and the late entering of pleas of guilty (Moodie [2020] NSWCCA 160).

172. All the above identified combination of factors are present in respect of this offending are relevant in determining the offender’s sentence.

173. I agree with the parties that the s 5 threshold has been crossed and no alternative other than a custodial sentence can be imposed.

174. Taking into account those matters under Part 3 of the Act I have identified particular to him, including the reduction in sentence he is entitled to by statute because of his plea of guilty; and my assessment of his culpability and seriousness of the offence I am satisfied only a custodial sentence is appropriate.

Special Circumstances

175. I propose to make a finding of special circumstances and vary the statutory ratio between the head sentence and non-parole period on the basis it is his first time in custody, that, I accept, will be more onerous for him because of his underlying mental health but more importantly to allow him a greater time in the community where he can participate in rehabilitation programs.

Totality

176. The offences occurred at the same time in the same collision however involved two victims and two distinct criminal acts. Consequently, I am satisfied the sentence imposed should include a degree of concurrency with some accumulation to represent the overall criminality.

Indicative Sentences

177. I propose to sentence him to an aggregate sentence and am required to indicate the sentences I would have imposed for each offence.

178. I adjudged the criminality involved in the offences was above the mid-range of objective seriousness. After taking into account the subjective and mitigating factors, including, but not restricted to, the time the offender was subjected to restrictive bail conditions. I am satisfied the starting point for the indicative sentences would have been 4 years and 6 months (count 2) and 2 years and 9 months (count 4).

177.  After taking into account the reduction of 10% for his pleas of guilty in respect of Count 2, I indicate a sentence of 4 years imprisonment; and, in respect of Count 4, I indicate a sentence of 2 years and 5 months imprisonment. Both indicative sentences have been slightly rounded down to the benefit of the offender.

AGGREGATE SENTENCE

180. Mr Saleh If you would please stand. I convict you of each offence. I sentence you to an aggregate sentence of 5 years to commence on the 26 November 2023 and expire on the 25 November 2028. I set an aggregate non-parole period of 3 years to commence on the 26 November 2023 and expire on the 25 November 2026.

181. That is an overall sentence of 5 years with a non-parole period of 3 years. You will be eligible for release to parole on the 25 November 2026.

Motor Vehicle Driver’s Licence

182. In respect of each offence, you are disqualified from holding a motor vehicle driver’s licence for the specified automatic period. Each disqualification is to be concurrent with the other.

Directions

183. I direct the report of Dr Nielssen be provided to Corrective Services to assist in your rehabilitation.

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