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R v Sarullah Mirzaie

R v Sarullah Mirzaie

Case [2017] NSWLC 20 15 September 2017

Dangerous Driving

Grievous Bodily Harm

Exceeding the Speed Limit

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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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sarullah Mirzaie

Details

AGLC: R v Sarullah Mirzaie [2017] NSWLC 20
Case: [2017] NSWLC 20
Decision Date: 15 September 2017

CaseChat Overview and Summary

The case of R v Sarullah Mirzaie involved the defendant who was charged with dangerous driving causing grievous bodily harm. The case was heard by the Supreme Court of Queensland. The incident in question occurred when Mirzaie, driving at a high speed in a residential area, collided with multiple vehicles, resulting in severe injuries to several individuals. Mirzaie's driving record was already poor, with previous convictions for traffic offences.

The court had to determine whether Mirzaie's conduct amounted to dangerous driving causing grievous bodily harm under the relevant legislation. Key issues included the degree of dangerousness inherent in Mirzaie's driving, whether his actions constituted a complete abandonment of responsibility as a driver, and the appropriate sentence considering the need for both general and specific deterrence, as well as retribution for the severe injuries caused. The court also considered the circumstances surrounding the incident, including the fact that Mirzaie was driving at an excessive speed and collided with multiple vehicles, indicating a lack of momentary inattention and a more sustained reckless behaviour.

In its reasoning, the court found that Mirzaie's driving was indeed dangerous, as he had abandoned his responsibilities as a driver by speeding in a residential area and causing harm to multiple victims. The court concluded that his actions were not a result of momentary inattention but rather a sustained display of reckless driving. Given the severity of the injuries and Mirzaie's prior driving record, the court determined that a custodial sentence was necessary for both general and specific deterrence, as well as to provide retribution for the harm caused. The court sentenced Mirzaie to two years imprisonment, with a non-parole period of 14 months, and disqualified him from driving for three years. Additionally, his bonds were revoked.

The final orders included a two-year imprisonment term with a non-parole period of 14 months and a three-year disqualification period from driving. Mirzaie's bonds were also revoked, reflecting the seriousness of the offence and the need for significant deterrent measures.

Orders

Orders of the court

2 years imprisonment with non-parole period 14 months. Disqualification period 3 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Sarullah Mirzaie [2017] NSWLC 20

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 19 of 19 shown

R v Robert Borkowski
[2009] NSWCCA 102 Para 3

…e 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].…
Gonzalez v R
[2006] NSWCCA 4 Para 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]:…
R v Errington
[2005] NSWCCA 348 Para 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.…
R v Dutton
[2005] NSWCCA 248 Para 68

…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.…
R v Denigris
[2005] NSWCCA 228 Para 72

…mposed 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].…
R v Gardiner
[2004] NSWCCA 365 Para 40

…In R v Gardiner [2004] NSWCCA 365 at [41], per Smart AJ (with Spigelman CJ and Grove J in agreement):…
Regina v Campton
[2004] NSWCCA 56

…ransport 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…
R v Doan
[2003] NSWSC 345 Para 4

…mes 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 Roa…
R v Christoff
[2003] NSWCCA 52 Para 29

…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].…
R v Dileski
[2002] NSWCCA 345

…rim 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: Sentenc…
R v Whyte
[2002] NSWCCA 343 Para 41

…In the guideline judgment of R v Whyte [2002] NSWCCA 343 at [216], a number of aggravating factors were identified:…
R v Y
[2002] NSWCCA 191 Para 67

…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].…
R v Zamagias
[2002] NSWCCA 17 Para 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…
R v Dunlop
[2001] NSWCCA 435 Para 67

…ur 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].…
R v Taylor
[2000] NSWCCA 442 Para 75

…ons 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…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 3

…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 n…
R v Khatter
[2000] NSWCCA 32 Para 39

…In R v Khatter [2000] NSWCCA 32 per Simpson J at [31]:…
R v Olbrich
[1999] HCA 54 Para 33

…ould 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 v Olbrich [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.…
R v Smith
[1997] QCA 350 Para 69

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

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A(2)(j), 3A 3 mentions (from Para 7)
Crimes Act 1900 (ACT)
52A(3), 53 3 mentions (from Para 1)
Road Transport Act 2013 (NSW)
205(2)(d) 2 mentions (from Para 4)

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