Director of Public Prosecutions (NSW) v Mansouri

The plea

1. It was submitted to me that the defendant had offered to plead guilty at an early stage to the charge that remains before the court and that in those circumstances, the full 25% discount on penalty ought to be provided consistent with the principles identified in R v Borkowski [2009] NSWCCA 102. Ms Rowe conceded that the defendant was entitled to such a discount.

Objective seriousness

1. As in any matter it is necessary for me to make an assessment of the objective seriousness of the offending. This is to be done in part by having regard to the maximum penalty that has been prescribed by the Parliament. I have already made reference to that. My assessment must also have regard to the degree of negligence involved in the driving. Mr Marr submitted that I would find that the negligence involved in this case is very much at the lower end of objective seriousness. In support of that submission he observed and urged upon me a finding that the defendant's negligence was primarily associated with momentary mismanagement and/or misjudgment. In my view, the offending is properly regarded as being at or just above the mid-range of objective seriousness. Whilst it is true that the defendant was not exceeding the sign posted speed limit in any significant way, that does not mean that the defendant was travelling at a speed that was appropriate in all the circumstances. Further, his failure to manage the prevailing conditions and his motor vehicle in a way that ensured that the vehicle remained in its lane, and did not mount the footpath and strike a pedestrian, involved in all the circumstances a serious departure from the standard of care for others that is expected of an ordinary and prudent driver. Clearly, this offence is a serious one. The fact that Parliament has legislated to provide that a term of imprisonment might be imposed, indicates that the seriousness with which it is to be regarded: R v Oliver (1980) 7 A Crim R 174.

The defendant

1. A powerful and persuasive subjective case is presented on behalf of the defendant. He is aged 43 years and is married with 4 children aged 18, 17, 6 and 3. He and members of his family report a sad and tragic background which is relevant to the sentencing task I must perform. This relevance derives from the fundamental requirement that justice be individual. The penalty that is finally imposed ought, so far as the court is able, fit both the offence and the defendant. These purposes will often pull in different directions, and the interplay between them "may be complex and on occasion intricate": R v Engert (1995) 84 A Crim R 67 per Gleeson CJ at [68]. As Grove J observed in R v Todoroski [2010] NSWCCA 75 at [26] (Allsop P and Hislop J agreeing): I note that every offence and every defendant is different and the essential aim of all sentencing is individual justice. While this observation was made by the Court of Criminal Appeal in the context of it considering the utility of comparable cases and statistics, it seems to me that the principle of which it speaks is of universal application to each and every sentencing task. For this reason is it necessary for me to touch upon those issues particular to the defendant in some more detail. Much of this detail came before the court through the tender without objection of two psychological reports prepared by Ms Martha Knox-Haly from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. The first report, although undated, dealt with the period until 14 March 2016. The second report is dated 20 June 2016.
2. The defendant was born in Iran and trained as an Electrical Engineer. In his early 20s he met his wife, Ramina. In Iran, marriages were arranged by negotiation and were to be kept within the tribe within which a person identified. The defendant and his wife were not from the same tribe and married in the face of significant opposition from his wife's family. This opposition included the defendant's wife being severely beaten on several occasions by her brothers. Further the defendant's brother was stabbed by one of his wife's brothers and his father's home was raided by them.
3. When the defendant's wife was seven months pregnant with their third child, her sister (who had remained supportive of her) was secretly caring for their eldest child, Negin. The defendant's brothers in law discovered the child at her aunt's home and confronted the aunt. They beat her until she disclosed the defendant and his wife's address. The brothers in law then attended at the home of the defendant and his wife. The defendant was not home but his wife was. She was beaten so severely that she began to miscarry. She was taken to hospital and it became clear that the baby had died in utero during the beating. A still born baby girl who was named Fatima was delivered via caesarean section. As a consequence of the beating, the defendant's wife not only lost her unborn daughter but also lost the hearing in her left ear. The body of the dead baby girl was given to the defendant and despite his distressed state, he was required to hurriedly bury the child. This meant that appropriate funeral rites for the child were not observed. The defendant still experiences nightmares and significant feelings of guilt as a consequence of these events.
4. After this attack the defendant and his wife were not surprisingly increasingly fearful of his brothers in law, and they moved far away from their family home. On an occasion thereafter, the defendant's youngest daughter was again visiting with her maternal aunt. The defendant's brothers in law again discovered the child and on this occasion the defendant's sister in law was beaten to death. The young child was present in the home while this occurred. It is difficult to comprehend the level of depraved and almost prehistoric brutality to which the defendant and his family were subjected at the hands of members of his wife's family. It is also difficult to appreciate and understand the impact that such brutality would have on all of their general functioning.
5. Following the murder of his sister in law the defendant and his wife took the view that they could no longer reside in Iran. They concluded, not unreasonably given that to which they had been subjected, that to do so would simply expose all of their family to further risk of significant harm or death. They fled to Indonesia where they remained for six weeks and then from Indonesia journeyed by boat as asylum seekers to Australia over 4 days, in what are described as horrific conditions. There were 130 people on the boat. None of the family could swim and they had not previously seen the ocean. The family found the experience terrifying. The conditions were so cramped that the family were unable to stretch their legs. The boat had no life jackets and with the lack of toilets, passengers had no option but to soil themselves. It is reported that the boat was covered in vomit. On arrival in Australia the family were detained on Christmas Island for 11 months. This detention facility was over crowded, their circumstances were difficult and there were attempts at self-harm by both the defendant who slashed his arms with glass and his then 13 year old son. The incident involving his son involved an attempt at cutting his own throat with shards of glass following an altercation with guards. It cannot be overlooked that this was all occurring against the background of the family's flight from the wife's murderous brothers, their ongoing grieving for Fatima and the wife's sister, and the fact that a new baby had been born. The family was later transferred to a detention centre in Darwin where their circumstances remained bleak. Whilst resident in the Darwin detention centre the defendant's eldest daughter jumped off a building in a suicide attempt and sustained a fractured pelvis. After being transferred to Brisbane because of their severe mental health difficulties, the family were later released into community detention in Sydney in December 2014. Following release into the community the defendant has continued to suffer significant symptoms of depression and remains hyper vigilant around the safety of his family. The family remain on bridging visas awaiting the final resolution of their status in this country. Sadly this defendant and his family have been subjected to significant disadvantage over an extended period, all in circumstances where both he and they have done nothing whatsoever to warrant such treatment.
6. It is against this background that the defendant appears before the court for sentence. Of course, and most importantly, to be added to the difficulty of his circumstances, is the fact that the defendant has been stricken with remorse, grief, guilt and regret as a consequence of the death of Ms Zheng in August 2015. He feels her death deeply and prays daily seeking forgiveness for his role in her death. He wishes he could trade places with her. He has been dangerously suicidal on several occasions since the motor vehicle accident, and has continued to engage in extensive psychological counselling and treatment. It is not in the least surprising that the defendant meets the criteria for a diagnosis of post-traumatic stress disorder. While the same sentencing principles must apply in every case irrespective of the defendant's membership of a particular ethnic group, I should also have regard to those material facts which exist only by reason of the defendant's membership of that group: Neal v The Queen (1982) 149 CLR 305 per Brennan CJ at 326. This principle has been more recently affirmed by the High Court, so far as it relates to Aboriginal offenders, in Munda v Western Australia (2013) 249 CLR 600. It has equal relevance when dealing with an ethnic group such as those seeking asylum from persecution in a country as rich and bountiful as Australia.

Hardship to family

1. The defendant's children and his wife are each said to have complex mental health needs. The family have no relatives or family support in Australia and the evidence tendered reveals that the entire family are highly reliant on the defendant. The Court was provided with evidence from Settlement Services International and Woodville Alliance (formerly known as Woodville Community Services) in relation to the needs of the family. The document provided by Settlement Services International opines that several members of the family are at high risk of suicide or have trauma-related mental health issues. The family are also suffering from complex grief and loss issues. The children have their own caseworkers through Woodville Alliance. The report from that organisation confirms that the family's needs are complicated and that each member's mental health difficulties impact on others. Each of the four children display signs of anxiety and stress and the two older children also suffer from an increased risk of suicide. What each of the reports makes clear is that the defendant is the fulcrum around which the family turns. Without him the entire family's situation would be even more dire. The stress and anxiety associated with the consequences of the motor vehicle accident and these proceedings, along with the defendant's own compromised mental health has meant that there are real and ongoing risk factors associated with the family's circumstances. Mr Marr has urged me to have regard to the hardship that might be occasioned to the family by the penalty imposed upon the defendant.
2. The general principle is that hardship to family and dependents may be an unavoidable consequence of a penalty imposed in sentence proceedings and is not to be regarded as a mitigating factor unless such hardship is exceptional. In R v Edwards (1996) 90 A Crim R 510 at 516 the New South Wales Court of Criminal Appeal held that it was only when circumstances were "highly exceptional" and where it would be inhumane to refuse to do so that hardship to others could be taken into account. It is part of the consequence of the duty of judicial officers to impose sentences upon offenders knowing that doing so will cause hardship to innocent parties. The question of whether hardship is truly, wholly or highly exceptional is one in respect of which reasonable minds may sometimes differ. In this case, however, and given all that this family has been subjected to, it is difficult to conceive of a sentencing court coming to a view different to that which I have reached.
3. I am satisfied that the circumstances of the defendant's family are highly exceptional. I have concluded that in the circumstances of this case, it is appropriate for me to take into account the hardship to them that might result from any penalty that is imposed upon the defendant.

Sentencing principles

1. In sentencing for the offence of negligent driving occasioning death, the purposes of general deterrence, accountability, punishment and denunciation contained within s 3A of the Crimes (Sentencing Procedure) Act 1999 loom large. Offences such as this are often committed by persons of otherwise good character. The defendant is such a person. The position is however that prior good character is to be given less weight in cases where general deterrence is important, the offence is serious and the offence is one often committed by persons who are otherwise of good character: R v Kennedy [2000] NSWCCA 527. As I have earlier referred to, the fact that the Parliament has prescribed a penalty of imprisonment indicates its intention that the offence is to be regarded as a serious one. Further, there have over time been amendments made by the Parliament to the prescribed penalties for the offence so as to increase the maximum term of imprisonment available, and the maximum amount of fine that might be imposed. These increases in penalty mean that courts must reflect the parliamentary intention that more significant penalties ought to be imposed. The decision of the Court of Criminal Appeal in Bonsu v R [2009] NSWCCA 316 (where the court was constituted by Howie J alone) makes it clear that real regard must be paid to the fact that the conduct for which the defendant is being sentenced resulted in the loss of life of another member of the community. His Honour remarked in that case (at [10]): I have difficulty in understanding how s 10A or s 9 of the Crimes (Sentencing Procedure) Act 1999 can be used for such an offence. I take this to be a clear exhortation as to how sentencing for these matters should be dealt with. Mr Marr submitted that I was not bound by what Justice Howie had said in Bonsu and that his remarks were obiter. He did concede that what his Honour had said was plainly persuasive. I note that a similar submission was made to Judge Henson, Chief Magistrate, in Director of Public Prosecutions (NSW) v Pelletier [2014] NSWLC 9. In response to that submission the Chief Magistrate had the following to say (at [52]): The response of this Court is, and must be, that when the Court of Criminal Appeal expresses a view in relation to consistency on sentencing and identifies a lack of appropriateness in the penalties being imposed, it behoves an inferior court to take heed lest it creates an environment whereby a Crown appeal predicated on inadequacy of sentence becomes an inevitable consequence. I respectfully agree with the Chief Magistrate. To the extent that Mr Marr submitted that this was a matter that could be dealt with by the imposition of a s 9 bond, I reject his submission.
2. It is also necessary, consistent with s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 to "recognise the harm done to the victim and the community". The tragic reality of the motor vehicle accident in which the defendant was involved in on 23 August 2015 is that a 65 year old lady who was minding her own business and simply walking along a footpath has been killed. She was taken from her family suddenly and in a way which I accept has caused them enormous emotional pain. I have been provided with a Victim Impact Statement from Ms Zheng's daughter Yu Chen. She describes her mother as a gentle woman who was "the spirit of our family" and says "We will always miss her". The sudden loss of a loved one is a traumatic and devastating experience and one from which people often struggle to recover, and on behalf of the court and the community I express my heartfelt sympathy to Ms Zheng's family. The harm which has been done to the victim's family is an aspect of the harm done to the whole community, and it is appropriate to take that harm into account in determining sentence: Sumpton v R [2016] NSWCCA 162 (per Bellew J at [153], Hoeben CJ at CL and Hall J agreeing). Indeed, in my assessment it is not only appropriate to take such harm into account, it is positively necessary to do so.
3. Mr Marr provided me with sentencing statistics for the offence as maintained by the Judicial Commission. The statistics provided by him for all offenders were for the period July 2013 to December 2015, a sample of 41 cases. A more meaningful consideration of the sentencing statistics for this offence can be garnered by a consideration of the penalties imposed for the same offence under the repealed s 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 for the 4 year period April 2012 to March 2016. The addition of both sets of statistics which cover in totality a period of 4 years provides a total cohort of 111 cases dealt with in the Local Court. An analysis of that total of cases indicates the following disposition of this particular offence during the stated period: Section 10 Dismissal 1.8% Section 10 Bond 9.0% Section 10 A 1.8% Fine only 5.4% Section 9 Bond 44.2% Community Service Order 6.3% Suspended sentence 19.8% Intensive Correction Order 4.5% Home Detention 2.7% Prison 4.5%

Consistent with authority I will have cautious regard to these statistics: Skocic v R [2014] NSWCCA 225. Sentencing statistics are a means of providing a court with a general indication of sentencing trends and standards and assist in promoting consistency. They are not some type of grid that dictates an outcome. Indeed in considering these particular statistics one is left to ponder as his Honour Magistrate Stewart did in NSW Police v Nash [2016] NSWLC 3 at [20], why it is that in post-Bonsu sentencing, more than half of all offenders are dealt with by sections 10 (either with or without a bond), 10A or 9, or by the imposition of a fine. While all cases are individual these statistics do seem at odds with the guidance provided by Howie J in Bonsu.

Conclusion

1. This is a troubling and difficult case. Like so many cases of this type, one is left to consider the maxim "There but for the grace of God, go I". All of us who are licensed to drive motor vehicles have at some time driven carelessly. Fortunately very few have had visited upon us and others, the catastrophic consequences of our carelessness such as are exhibited here. As Judge Henson, Chief Magistrate remarked in DPP v Pelletier (supra) at [43] when considering this issue: "This form of self-evaluation is not something that sits comfortably with the criminal law. Courts are required to apply the law not distort it". The penalty to be imposed must reflect the tragedy arising from Ms Zheng's death and must act as a deterrent to others. The message must be sent that if people drive negligently and other members of the community lose their lives, then significant punishments will result. I am of the view that the section 5 threshold has been crossed and that no penalty other than one involving custody ought to be imposed. There is no alternative reasonably available to the court noting that the Pre-Sentence Report indicates that the defendant is not suitable for a community service order. Consistent with R v Zamagias [2002] NSWCCA 17 I must then determine the length of that sentence. Given my finding that the objective seriousness of the offending is at or just above the mid-range, and after allowing for the 25% discount and the defendant's overwhelming subjective case, I have determined that an appropriate sentence is one of 7 months imprisonment. I must now consider whether there is any alternative to that sentence being served in full time custody. I have concluded that given the defendant's background, his lack of any prior record, his real remorse, his ongoing mental health issues, the deprivation and hardship to which he and his family have been subjected and the hardship that would otherwise devolve to his family, that the sentence to be imposed can appropriately be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that finalisation of the matter in this way will assist in the rehabilitation of the defendant and will also pay appropriate regard to all of the purposes of sentencing. I have noted and accept that the defendant is unlikely to benefit from Community Corrections supervision and that he has no identified criminogenic factors. I accept that this sentence involves a significant degree of leniency however in my view such leniency is warranted given the highly unusual and compelling subjective factors operating in the defendant's favour. To do otherwise than suspend the defendant's sentence would be to impose a penalty that did not reflect the totality and the humanity of the matter. I wish to also make clear that it is not my intention that the imposition of this penalty should impact adversely upon the defendant's visa status in this country.
2. ORDERS: 1. The defendant is convicted. 2. He is sentenced to a term of imprisonment of 7 months. That sentence is to be suspended and the defendant is to be released from custody on condition that he enters into a bond to be of good behaviour pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 for a period of 7 months. The conditions of the bond are: 1. To be of good behaviour and appear for sentence if called upon, and 2. To notify the Registrar of this court of any change to his residential address. 1. Further the defendant is disqualified from holding or obtaining a driver licence pursuant to the road transport legislation for the automatic period of 3 years. Deputy Chief Magistrate Christopher O'Brien Downing Centre Local Court 16 September 2016

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2016