R v Sarullah Mirzaie

[2017] NSWLC 20

Local Court

New South Wales

Medium Neutral Citation:	R v Sarullah Mirzaie [2017] NSWLC 20
Hearing dates:	20 July 2017
Decision date:	15 September 2017
Jurisdiction:	Criminal
Before:	Magistrate P Stewart
Decision:	2 years imprisonment with non-parole period 14 months. Disqualification period 3 years.
Catchwords:	CRIMINAL LAW - Particular offences - Driving offences - Dangerous driving – Grievous bodily harm – furious driving part of dangerousness – exceeding the speed limit – abandonment of responsibility as a driver – not momentary inattention – multiple victims – conditional liberty – poor driving record – matters on Form 1 – bonds revoked – need for general deterrence – need for specific deterrence – severe injury requires retribution in sentencing – special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) ss 52A(3), 53 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(j) Road Transport Act 2013 (NSW) s 205(2)(d)
Cases Cited:	Gonzalez v R [2006] NSWCCA 4 R v Borkowski [2009] NSWCCA 102 R v Campton [2004] NSWCCA 56 R v Christoff [2003] NSWCCA 52 R v Doan (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Dunlop [2001] NSWCCA 435 R v Dutton [2005] NSWCCA 248 R v Errington (2005) 157 A Crim R 553 R v Gardiner [2004] NSWCCA 365 R v Janceski [2005] NSWCCA 228 R v Jurisic (1998) 45 NSWLR 209 R v Khatter [2000] NSWCCA 32 R v Rushby [1977] 1 NSWLR 594 R v Slattery (1996) 90 A Crim R 519 R v Smith (1997) 95 A Crim R 373 R v Taylor [2000] NSWCCA 442 R v Thompson; R v Houlton [2000] NSWCCA 309 R v Tzanis (2005) 44 MVR 160 R v Whyte [2002] NSWCCA 345 R v Y [2002] NSWCCA 191 R v Zamagias [2002] NSWCCA 17 The Queen v Olbrich [1999] HCA 54
Texts Cited:	M M G Britts, Traffic Law (NSW) (Lawbook Co, 9th ed, 2008)
Category:	Sentence
Parties:	NSW Police Sarullah Mirzaie (defendant)
Representation:	Solicitors:   Sgt Kirby, Police Prosecutor (for the prosecution) Mr T Seeney (solicitor) (for the defendant)
File Number(s):	2016/00199450

Sentencing Remarks

The Charges and the Pleas

1. The offender, Sarullah MIRZAIE, pleaded guilty to Dangerous Driving Occasioning Grievous Bodily Harm contrary to s.52A(3) of the Crimes Act 1900 (NSW). The victim is Paula Simon.

2. He asks that three further counts, namely two further counts of Dangerous Driving Occasioning Grievous Bodily Harm (seq.1 victim Alyssa Marie, seq. 8 victim Daniella Iminjan) and one count of Furious Driving Causing Bodily Harm contrary to s.53 of the Crimes Act (seq.8 victim Emilija Josevska) be taken into account on a Form 1.

3. The offender initially pleaded not guilty to all charges. A plea of guilty was entered to the substantive charge and an indication of guilt to the Form 1 matters on the day of hearing, 20 July 2017. In accordance with the principles set out in R v Thompson; R v Houlton [2000] NSWCCA 309, a discount of 10% is allowed for the utilitarian value of the plea. I note that the offender’s solicitor suggests a discount of 15 – 20%. There is no basis for such a finding. See also R v Borkowski [2009] NSWCCA 102 at [32].

Maximum Penalties

4. The Dangerous Driving Occasioning Grievous Bodily Harm matters are brought per s.52A(3) of the Crimes Act. The maximum penalty on indictment is 7 years imprisonment. The Local Court has a jurisdictional limit of 2 years. The principles in R v Doan (2000) 50 NSWLR 115 at [35] apply – i.e. the jurisdictional limit of the Local Court is not reserved for worst case scenarios. Upon conviction per s 205(2)(d) of the Road Transport Act 2013 (NSW), there is an automatic period of disqualification of 3 years which can be reduced to not less than 12 months.

5. The furious driving matter per s.53 of the Crimes Act carries a maximum penalty of 2 years imprisonment. The disqualification period is identical to the other matters.

Criminal History

6. At the time of the offending conduct, the offender had a limited criminal history involving two counts of Affray which occurred on different occasions, Assault Occasioning Actual Bodily Harm, Possess Prescribed Restricted Substance and Possess Prohibited Drug.

Conditional Liberty

7. The offender was on multiple bonds per s.9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for Affray (H216258595/1) [originally imposed on 19 November 2014, then called up and re-sentenced to a further bond on 17 June 2015]; Assault Occasioning Actual Bodily Harm and Affray (H54742770) [originally imposed on 19 November 2014, then called up and re-sentenced to a further bond on 17 June 2015] and Receiving Stolen Property (H58170643). Each of the bonds imposed or re-imposed on 17 June 2015 were for a term of 12 months.

8. The commission of further offences whilst on conditional liberty is an aggravating factor per s.21A(2)(j) of the Crimes (Sentencing Procedure) Act.

Driving History

9. The offender obtained his learner’s licence on 28 September 2009, provisional licence P1 on 25 August 2011, and provisional licence P2 on 17 December 2012. He remains a provisional licence holder.

10. There are three entries on his driving record for speeding by not more than 10kph (4 February 2011, 8. December 2011, 28 June 2013), and one entry for speeding by more than 10kph (8 August 2013). There are also infringement notices and penalties for negligent driving (4 August 2013), disobey traffic control lights (8 December 2013), driver not wear safety belt (12 December 2014), not cross lane line with safety (24 February 2015), and three entries for not complying with conditions of provisional licence (13 December 2012, 5 March 2015 and 18 July 2015). The accumulation of 11 traffic offences whilst still a provisional licence holder does the offender no credit.

Facts

11. A police facts sheet was tendered together with an expert certificate/statement from doctors treating each of the respective victims. In addition, a letter from the Brain Injury Rehabilitation Unit was tendered regarding injuries to Paula Simon; a report from the Girguis Family Medical Practice regarding Daniella Iminjan; and a Collision Reconstruction Report from Crimes Scene Officer Gavin Lennon regarding findings as to the speed of the offender’s vehicle leading up to (and at the time of) the collision. A series of photographs of the road area were also tendered.

12. About 12.48pm on Friday 27 May 2016, the offender was the driver of a black Toyota Echo hatchback travelling eastbound in lane 2 of 2 along the Horsely Drive, Wetherill Park. His girlfriend Paula Simon was seated in the front passenger seat. Friends Daniella Iminjan, Alyssa Marie and Emilija Josevska were seated in the rear of the car.

13. The offender drove towards the intersection of Rennie Street. The Horsely Drive has two lanes in each direction at that intersection with a right turn lane for westbound vehicles to turn from the Horsely Drive into Rennie Street. Approaching that intersection from the direction the offender was coming from involved an uphill grade and a sweeping left hand bend. There are clearly posted 70kph speed limit signs erected. Traffic at the time was light to medium and fine daylight conditions.

14. A white Hino truck driven in a westerly direction slowed down and moved into the right turn lane for Rennie Street. The truck driver saw the Echo when it was approximately 200m from the intersection, and believing it was safe to do so commenced turning right, managing to get the front of his vehicle into Rennie Street.

15. The offender applied the brakes harshly, the car skidding for approximately 36 metres, veering into lane 1 towards the front of the truck. The front of the Echo impacted heavily with the nearside of the truck causing the Echo to rotate 90 degrees in an anticlockwise direction.

16. The truck driver and members of the public assisted the offender get out of the vehicle, however the four female passengers were trapped. Emergency services attended extricating the injured persons who were taken to hospital for treatment. The offender was also conveyed to hospital. Alcohol was not a factor.

Injuries – Paula Simon (aged 17 at time of offence)

17. Paula Simon was placed in an induced coma for several days as a consequence of suffering a severe traumatic brain injury. She has high level cognitive impairments and impairment of motor skills, with observable difficulties with activities such as eating and holding a conversation. She also suffered a nasal bone fracture and a 3rd right rib fracture but did not require surgical intervention.

18. The Brain Injury Rehabilitation Unit report (dated 25 August 2017) indicates that Ms Simon received a severe traumatic brain injury with a resultant period of confusion and post-traumatic amnesia lasting nearly a month. The report details multiple sites of intracranial petechial haemorrhage. Ms Simon was planning to return to school. She attended the Liverpool Brain Injury Rehabilitation Unit and was seen by the case manager and the school coordinator from the Westmead Children’s Brain Injury Service. She engaged a private clinical psychologist and occupational therapist.

19. In late 2016, Ms Simon was struggling at school with issues of mental fatigue, impaired organisational ability and high level cognitive impairments. She was found to have reduced speed of information processing, impaired divided attention and poor visual spatial skills and visual scanning. She suffers from anxiety and disturbance of sleep. The same difficulties were observed in February 2017. The author indicated likely long-term impairments and certainly difficulties in completing her HSC, requiring ongoing assistance, and noting a change in her educational goals as a result of the cognitive impairments. The report concludes that further improvement is likely. By way of long term prognosis, it is anticipated Ms Simon will continue to have cognitive, emotional and behavioural difficulties. The injuries constitute grievous bodily harm.

Injuries – Alyssa Marie

20. Ms Marie suffered multiple fractures, including to her hip (neck of femur), left elbow, nasal bone and right wrist. These injuries required surgical intervention. Secondary surgery took place to fix her left elbow and examine her right ankle under anaesthetic. She required a transfusion for post-operative blood loss and was wheelchair bound for 6 weeks with a prognosis of walking independently within 3 months. The left elbow was a more severe injury and may not recover a full range of motion. There is a risk of avascular necrosis or death of bone tissue to the right femoral head with associated future disability. The injuries constitute grievous bodily harm.

Injuries – Daniella Iminjan (aged 16 at time of offence)

21. Ms Iminjan suffered fractured vertebrae L1 (Lumbar spine) and fractured clavicle. Her family doctor noted initial complaint of pain in her neck, right shoulder, left knee and lower back. Regarding her neck and lower back, it was accompanied by marked stiffness and limitation of movements that disabled her considerably. Pain increased with the passage of time. Ms Iminjan has developed an aversion to driving and gets panic attacks when she sits in a car. She has become sad, nervous and started to panic, her sleep is disturbed by pain, with anxiety making her easily tired, leading to feelings of anger and depression.

22. She reportedly used to have an active lifestyle, including playing sports, prior to the accident. There is reduced movement in all affected areas. The doctor opines a post-traumatic mechanical derangement of the cervical spine and lumbar spine, caused by masculo-ligamentous sprain. A compression wedge fracture of the body L1 with 25% loss of height (to that vertebrae). Treatment includes pain relief medications including narcotic analgesics, non-steroidal anti-inflammatory medications, physiotherapy, psychological counselling, anti-depressant medications, exercise program and referrals to a psychiatrist and orthopaedic surgeon. The prognosis is of increasing future disability with spinal degenerative changes, with further psychological disability.

23. The report of Ms Iminjan’s physiotherapist indicates extreme compliance with treatment, noting ongoing lower back complaints with a great deal of psychologically related fear avoidant behaviours as a result, including demonstrated severe muscle guarding and fear avoidant behaviour during assessment. Whilst part of that opinion refers to psychological issues, it is consistent with the findings and opinion of the family doctor. The injuries constitute grievous bodily harm.

Injuries – Emilija Josevska

24. Ms Josevska was admitted to hospital for assessment and observation, suffering minor abdominal injuries and bruising to the right hip, sacral spine, chest wall, pelvis and lower lumbar spine. She had an undisplaced fracture of the left 3rd rib, and possible cerebral contusion of the anterior part of the left frontal lobe. She received injections and painkillers. She was cleared of serious injuries and discharged from hospital on 29 May 2016. The injuries amount to bodily harm.

Findings as to Speed of the Offender’s Vehicle

25. The facts indicate that physical evidence at the collision scene and evidence from independent witnesses suggest that the Echo was travelling in excess of the 70kph speed limit.

26. The offender took part in an interview with police on 30 June 2016, having attended the police station with his lawyer. He told police that he had been travelling at 70kph when a white hatchback turned right in front of him into Rennie Street followed by the truck. He said that he believed that he was 10 to 15 metres from the truck when it commenced the right turn. This explanation cannot be possibly correct and must be rejected. The distance skidded (36m) exceeds the distance that he thought he was from the truck when it turned.

27. The Collision Reconstruction Report indicates that the wheels of the offender’s vehicle were locked as the vehicle was sliding along the roadway. If the vehicle had been travelling at 70kph, it would have been able to come to a complete stop in approximately 25 metres. Instead, there are skid marks of approximately 36 metres. On that basis alone, it is abundantly clear that the vehicle driven by the offender was exceeding the speed limit.

28. The likely speed at the time of collision based on comparative damage studies for the same make of car is 64kph – which is not anywhere near a complete stop. It strongly supports the finding that the vehicle was speeding. However, this finding is indicative but not conclusive.

29. Although resulting damage to the vehicle or injury to a person does not itself prove that the antecedent driving was dangerous, it can be taken into account in determining whether the vehicle was driven at excessive speed – a matter relevant to the issue of dangerousness: see R v Christoff [2003] NSWCCA 52 at [45].

30. The crash reconstruction report found that the minimum speed of the car at the start of the tyre marking was approximately 84kph with a more likely speed in the vicinity of 106kph.

31. That aspect of the report was clearly wrong. At a speed of 84kph, the offender’s vehicle should have come to a stop after 36 metres. If it had done so, it would have come to a stop at approximately the point of impact, rather than impacting with the truck with continuing velocity with resultant damage as shown in a photo on the front page of the report, causing a rotation of the vehicle anticlockwise by 90 degrees.

32. The parties returned to court on 31 August 2017 where I raised my concerns. The police expert and the officer in charge of the matter were at Court. Both parties accepted that the expert report was incorrect to indicate a minimum speed of 84kph – clearly a higher speed was involved. Using the comparative damage speed of 64kph, the speed prior to braking would have been approximately 105kph. I questioned the reliability of such a figure, enquiring if there was a +/- tolerance. Mr Seeney, for the offender, sought a brief adjournment and spoke with the expert. It was subsequently indicated by agreed fact that the speed of the offending vehicle was somewhere between 90kph and 110kph.

33. I then confirmed with the parties that since the range was an agreed fact, I would not be making a finding of speed limited to the lower speed in that range. I reminded them of the authority and principle in The Queen vOlbrich [1999] HCA 54 at [27] – [28]. Mr Seeney re-affirmed that the court could take into account the whole range indicated. I shall proceed on that basis.

Further Observations on the Facts

34. Looking at the photographs of the scene, I am satisfied that the truck driver’s description of being able to see the offender’s vehicle 200m away is realistic. The photographic evidence comfortably leads to the conclusion that the offender’s view was not blocked, obstructed or obscured in any way from seeing the truck from a similar distance.

35. From a distance estimated at 200m, it would have taken in excess of 8 seconds for the offender’s vehicle to cover that distance at a speed of 90kph being at a rate of 24.96m per second [see Britts 9th Edition Traffic Law NSW, table 4]. At a speed of 110khp, the distance would be travelled at a rate of 30.56m per second in just over 6.5 seconds. I note that the distance of 200m is an estimate only, but it shows that the potential for the offender to have seen the truck was more than merely fleeting.

36. The truck driver believed it was safe to commence the turn, having observed the location of the Echo. I note that the front of the truck actually entered Rennie Street, meaning that it had crossed the 2 eastbound lanes. It is not the case that the truck had only entered into one or both lanes, or in other words only travelled a very short distance. The inference available is that the offender had a greater visual opportunity to observe the truck ahead of his vehicle due to the distance covered by the truck, with the truck being approximately perpendicular to the offender’s view.

37. The combination of visual opportunity and time taken to reach the truck from when it could reasonably be seen, give rise to the inescapable conclusion that the offender was not paying attention to the road ahead and failed to keep a proper lookout whilst travelling at a speed well above the speed limit driving in a furious manner, all of which amount to driving in a manner dangerous.

38. I am unable to accept the offender’s version to police that the truck commenced to turn when the offender’s vehicle was only 10 – 15m away, in addition to reasons already given, but also because of the distance travelled by the truck prior to impact.

Moral Culpability

39. In R v Khatter [2000] NSWCCA 32 per Simpson J at [31]:

“Offences under S 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different incidences of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.”

40. In R v Gardiner [2004] NSWCCA 365 at [41], per Smart AJ (with Spigelman CJ and Grove J in agreement):

“In determining the degree of moral culpability, regard is had to all the circumstances. On occasions it is the combination of a number of circumstances which leads to the conclusion that there is a high degree of moral culpability. It is erroneous to take a restrictive view of the circumstances that can lead to the conclusion that there is a high degree of moral culpability”.

41. In the guideline judgment of R v Whyte [2002] NSWCCA 343 at [216], a number of aggravating factors were identified:

“(i) Extent and nature of the injuries inflicted.

(ii) Number of people at risk.

(iii) Degree of speed.

(iv) Degree of intoxication or of substance use.

(v) Erratic or aggressive driving.

(vi) Competitive driving or showing off.

(vii) Length of the journey during which others were exposed to risk.

(vii) Ignoring the warnings.

(ix) Escaping police pursuit.

(x) Degree of sleep deprivation.

(xi) Failing to stop”.

42. In R v Errington (2005) 157 A Crim R 553 it was noted that those aggravating factors were not meant to act as a checklist but as a guide. Accordingly they remain illustrative not definitive.

43. In the present case, relevant factors from Whyte are (i) the extent and nature of the injuries, (ii) the number of persons put at risk, (iii) degree of speed and (v) erratic or aggressive driving. I have already outlined the nature and extent of injuries to each victim and the number of persons put at risk.

44. Assistance in assessing the level of moral culpability can be drawn from the observations of Howie J. in Gonzalez v R [2006] NSWCCA 4 at [13]:

“There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte.”

45. Factors in this case from Whyte, present to a material degree are (iii) and (v). They establish there is a high degree of moral culpability attaching to the offender’s conduct. I have already indicated findings regarding the speed of the offender’s vehicle.

46. In relation to the quality of the driving, dangerous driving need not be aggressive. I note that the offender admits guilt for the offence of furious driving. As the driving in the substantive offence is the same driving in the three additional counts to be taken into account, and since guilt is admitted, the offender is admitting to driving in a furious manner as part of the dangerousness in the substantive charge. This constitutes the aggravating factor (v) from Whyte (supra) – though only for the purpose of considering dangerousness – since dangerous driving itself is an element of the offence.

47. In Whyte (supra) the following observations were made regarding sentence:

“A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment” - at [214]

“The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence” - at [221]

“The guideline for offences against s52A(1) and s52A(3) for the typical case identified above should be:

Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate” – at [229].

48. A licence to drive a motor vehicle is a privilege and not a right. It carries with it significant obligations, including the observance of, and adherence to, road rules. There is a further responsibility to other road users, and passengers who have placed their trust in the hands of the driver and who have no control over the movement of the vehicle in which they travel.

49. The guilty plea acknowledges that the manner of driving was dangerous. The dangerousness is from both the speed at which the vehicle is being driven well above the posted speed limit, an element of furious driving, by admission, and the failure to keep a proper lookout. This is not a case of momentary inattention. The offender abandoned his responsibility as a driver. This is not an unfortunate accident. It is the product of serious criminal conduct and the offender’s moral culpability is high.

50. In determining the objective gravity of the offence, I take into account the seriousness of the injuries to Paula Simon. I am satisfied that in Ms Simon’s case, the seriousness of her injuries fall at a level above the mid-range.

51. For the purpose of taking into account the matters to be placed on a Form 1, I also take into account the injuries to the other passengers. In the case of Ms Marie, I find that the injuries suffered were below mid-level. I make a similar finding in relation to Ms Iminjan. The injuries to Ms Josevska are not measured by way of grievous bodily harm, but rather bodily harm. In the context of that charge, the injuries were also just below mid-range.

Pre-Sentence Report

52. The offender is now 24 years old. There is no doubt that the offender had a difficult start to life. Born in Afghanistan, his family fled to Pakistan 22 years ago when he was aged two to escape Taliban-related conflicts. He was estranged from his father until the age of 13. He reportedly witnessed traumatic events in Pakistan and claimed mental and physical abuse at the hands of his uncles in Pakistan. However, this was not expressed in the Pre-sentence Report (the ‘PSR’) attached to the breach of bond papers (dated 19 November 2014). He did not engage in education until the age of 13 after arriving in Australia. He experienced difficulty with bullying and was expelled for engaging in a physical altercation. The pre-sentence report dated 19 November 2014 does not indicate expulsion, though it does refer to suspension for fighting and truancy. He subsequently attended another high school completing year 12. He is currently employed as an apprentice plumber, working as such for the past 7 months.

53. The offender had a past history of drug dependence including cannabis, ice, ecstasy and cocaine. Notwithstanding that he is currently on a suspended sentence (for an unrelated matter where the sentence was imposed after the commission of the matter for which he is to be sentenced), he frankly admitted using cannabis in July 2017. A subsequent drug swipe returned a negative result.

54. It is said that he “seemingly demonstrated a level of insight into his drug use”. However, it was indicated in the PSR of 19 November 2014 that “Mr Mirzaie appeared to have some insight into his substance abuse.” The only relationship of his frank admission of drug use whilst on a suspended sentence goes to his prospects of rehabilitation. He has undergone psychological counselling and has completed three of seven lectures at the Traffic Offender’s Intervention Program. However, his attitude to offending as set out in page 3 of the PSR suggests a lack of acceptance or insight into the dangerous driving and furious driving offences, minimising his role. The previous PSR indicated lack of insight into his offending behaviour minimising the impact of his behaviour and deflecting blame.

Plea in Mitigation

55. Mr Seeney provided written submissions. It was suggested that the furious driving matter was laid per s.117(2) of the Road Transport Act. That is plainly incorrect.

56. Reference is made to the collision being caused by a period of split-second inattention. I do not accept that there was split second or momentary inattention. I have already made a finding of an abandonment of responsibility by the offender.

57. I do not accept the submission that this matter falls towards the lower to middle range of objective seriousness, as previously indicated, for the reasons given.

58. It was submitted that:

“Mr Mirzaie has already been partly held to account for his actions through the embarrassment of having to undergo investigation by his peers and having to explain to his character references (sic) the nature of the charges against him.”

59. There is nothing at all unusual about an offender having to explain the nature of charges to a referee. There is nothing at all unusual about feeling embarrassed about having to attend court, or whatever is intended by that submission.

60. I am unable to make a finding that Mr Mirzaie is unlikely to re-offend. Commencing that program after pleading guilty does not lead to a conclusion that the offender is unlikely to re-offend, though it may be considered in relation to prospects of rehabilitation. In any event, he had only completed one session at the time the PSR was prepared, and only two more since. The Traffic Offender Report indicates that the offender does not intend completing the program.

61. The PSR refers to the offender minimising the role he played in the outcome of the offences. I assess his prospects of rehabilitation as being reasonable but guarded, given his age, work ethic, and the fact that his known past history might be addressed through counselling or supervision.

62. It is submitted that the offender has a “new realisation for the very serious consequences that can flow from this offending behaviour”. I do not understand why it is a ‘new realisation.’ The offence occurred in May 2016. The offender appears to have limited insight into his offending conduct.

63. It is submitted that “since the offence occurred Mr Mirzaie has felt an incredible sense remorse (sic) and contrition for his offending behaviour”. There is no evidence of that. He did not acknowledge his offending behaviour until the morning of the defended hearing 14 months after the collision. He expressed regret (PSR at p3) in relation to the effects of his actions on his friends who were injured. It is not expressed in the lofty terms submitted by his lawyer.

64. His letter of apology is dated the same date that he was facing sentence. I am told, and accept that he apologised to the victims when they were in hospital, but there is some gap between that apology and taking responsibility for his actions which have left a lasting impact on those injured, and in at least the case of Paula Simon, a lifelong impact.

65. I do not accept the submission that the offender accepts full responsibility for his actions. His lawyer says it is the case, but the offender did not convey that impression to the author of the PSR, or by his late plea of guilty or by his late enrolment in the traffic offender program.

66. In R v Thompson; R v Houlton [2000] NSWCCA 309 at [118], Spigelman CJ., said:

“The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition.”

Sentencing Principles

67. I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. There is a strong need for general deterrence to send a clear message to those who drive motor vehicles, that criminal behaviour on our roads which devastates the lives of victims and their families, risks severe punishment: see R v Jurisic (1998) 45 NSWLR 209 at 228C-D, R v Dunlop [2001] NSWCCA 435 at [20] and R v Y [2002] NSWCCA 191 at [26].

68. I also take into account the need for denunciation and to make the offender accountable for his actions. In sentencing, recognition must be given to the harm done to the victim of the crime. Where the injury is serious, as in this case, then retribution is to be reflected to a considerable level in the sentence imposed: R v Dutton [2005] NSWCCA 248 at [34]. Rehabilitation of the offender must be promoted, but not at the expense of other purposes of sentencing.

69. In R v Smith (1997) 95 A Crim R 373, the court referred to youth of the offender remaining:

“an issue of importance in sentencing for most offences but less so in matters of this type. The prevalence of this type of driving among young people is significant. The consequences impose a burden on the whole of society. Courts have a duty to seek to deter this type of behaviour.”

70. I also take into account the need for a reasonable proportionality to the objective circumstances of the crimes. The subjective factors of the offender also require consideration and may be deserving of considerable weight: R v Tzanis (2005) 44 MVR 160.

71. One cannot help but feel a degree of empathy for the offender and his start to life. He has family support and holds down a full time job. He has engaged in counselling to deal with problematic substance abuse. However, in R v Dodd (1991) 57 A Crim R 349 at 354 it was said that:

“there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case”: (R v Rushby [1977] 1 NSWLR 594)” (see also R v Slattery (1996) 90 A Crim R 519 at 523; R v Campton [2004] NSWCCA 56).

The Effect of the Form 1 matters on Sentence

72. Ordinarily where one action by the offender causes a number of people to be injured and separate charges laid, there will be separate sentences imposed which are made partly cumulative and partly concurrent. The principle of totality applies to an aggregation of the sentences: see R v Janceski [2005] NSWCCA 228 at [33].

73. I have considered s.5 of the Crimes (Sentencing Procedure) Act. Mr Seeney appropriately conceded that the s.5 threshold had been crossed. Only a term of imprisonment of some kind is appropriate.

74. Given the findings of objective seriousness, the high level of moral culpability involved, and the persuasive effects of the guideline judgment, on the substantive charge a sentence of 2 years imprisonment is appropriate. Taking into account the three matters on the Form 1, a sentence of 2 years and 3 months would be an appropriate overall sentence. Applying the discount of 10% and rounding it down, it still leaves an effective sentence of 2 years imprisonment.

75. I have considered the decision of R v Zamagias [2002] NSWCCA 17 at [25], [26] and [32]. Neither a suspended sentence nor an Intensive Corrections Order would adequately reflect the criminality involved and the sentencing purposes of general and specific deterrence. As was said in R v Taylor [2000] NSWCCA 442, where general deterrence is the principal consideration, a suspended sentence “provides very little, if anything, by way of general deterrence.” The sentence will be one of full-time imprisonment.

76. I am mindful that it is the offender’s first time in custody and that he has ongoing drug issues for which he will require assistance in the future. I make a finding of special circumstances and will therefore make a reduction of the statutory ratio of non-parole period to head sentence. The non-parole period will be 14 months, after which he is to be released to supervised parole.

Bonds Called Up – Re-Determination of Sentence

77. I have had regard to the s.9 bonds and the facts sheet for each of them. The two Affray matters and Assault Occasioning Actual Bodily Harm matters involve a moderate level of violence. Those bonds were originally imposed on 19 November 2014. However, through further offending (receiving), the bonds were called up and the offender was placed on further bonds on 17 June 2015, including for the receiving matter. Through the commission of the driving offences, Mr Mirzaie is yet again in breach of those bonds. I take into account the amount of time that he was on those bonds prior to the breach.

78. Effective sentencing options are quite limited given that the offender is to be sentenced to full-time imprisonment. He is not to be punished for breaching the bond, but is to be resentenced. On the Affray matters and Assault Occasioning Actual Bodily Harm matter, the bonds are revoked. The offender is sentenced to a fixed term of imprisonment on each for 3 months. On the Receiving matter, a bare conviction is recorded per s.10A of the Crimes (Sentencing Procedure) Act.

ORDERS

79. For the offence of Dangerous Driving Occasioning Grievous Bodily Harm to Paula Simon, the offender Sarullah Mirzaie is sentenced to a term of imprisonment of 2 years from 15 September 2017 to 14 September 2019.

80. The non-parole period is 14 months from 15 September 2017 to 14 November 2018, and upon release he shall be supervised on parole. A finding of special circumstances is made.

81. In determining the above sentence, I have taken into account on a Form 1, two further counts of Dangerous Driving Occasioning Grievous Bodily Harm and a count of Furious Driving Cause Bodily Harm.

82. The offender is disqualified from driving for the automatic period of 3 years.

83. The s.9 bonds for Receiving, Assault Occasioning Actual Bodily Harm and Affray (two counts) are revoked. On the Receiving matter, a bare conviction is recorded per s.10A of the Crimes (Sentencing Procedure) Act. On the remaining matters, the offender is sentenced to concurrent fixed terms of imprisonment of 3 months from 15 September 2017 to 14 December 2017.

Philip Stewart

Magistrate

Downing Centre Local Court

15 September 2017

Note: An appeal on sentence was upheld and allowed in part by the District Court on 12 October 2017. The District Court reduced the non-parole period to 8 months.

Decision last updated: 05 February 2018