Sentence: Total effective sentence of 5 years' imprisonment with a non-parole period of 3 years imprisonment.
[2]
6AAA: 6 years and 10 months' imprisonment with a non-parole period of 4 years and 10 months' imprisonment.
[3]
Koshin Mohamed, you have pleaded guilty to one charge of negligently causing serious injury and one charge of failing to render assistance. You have also pleaded guilty to the summary offence of failing to provide details under s61 of the Road Safety Act.
The maximum penalty for negligently causing serious injury and failing to render assistance is 10 years' imprisonment. For the summary offence of failing to provide details, the maximum penalty is 10 months imprisonment.
The circumstances of your offending are set out in the summary of prosecution opening which was tendered as an exhibit and read in open court.[1] At the time of the offending, you were 26 years old. You were born in January 1997. You held a probationary driver's licence.
The victim of the offences in this case was Kate Davis. The collision which caused her serious injuries occurred at around 9.45 pm at the intersection of Furlong and McIntyre Roads in Sunshine. This is a T-intersection with McIntyre Road running north-south and Furlong Road running west. McIntyre Road particularly is a busy road in that part of Melbourne.
You were driving your mother's Kia Sorrento vehicle. Ms Davis was driving a Mitsubishi. Her passenger was Dwayne Egan, her partner. Ms Davis drove along Furlong Road and stopped at the intersection with McIntyre Road in the right turn lane and waited for a right turn arrow. When the green arrow appeared, she drove into the intersection moving at about 10 kilometres per hour. Your vehicle, against the red light, collided with her vehicle on the driver's side. Neither Ms Davis nor Mr Egan saw your car coming.
Mr Thomas Lyons approached the intersection in his Toyota RAV from the north. He stopped at the right-hand turn lane, intending to turn right into Furlong Road. He did not see the collision, but he heard a loud bang and then saw that two vehicles had collided and one of the vehicles was moving towards him. He ducked his head instinctively because he thought the vehicle would hit him. He saw debris falling from the two cars and he heard another crash behind him. He later learnt that that was a traffic light falling onto his car. He described the intersection as looking like a war zone, with smoke and bits of metal all over the place.
Two pedestrians, Rina Emeli and her son, witnessed the collision from the footpath on the west side of McIntyre Road. They saw your vehicle moving along McIntyre Road from the south and noticed you were speeding. Ms Emeli described your car as flying towards the intersection and said that it was going 'really fast, faster than normal speed'. They then observed the impact. Ms Emeli and her son saw you get out of the vehicle and run in the direction of Cromer Avenue. They rendered assistance to Ms Davis and Mr Egan until emergency services arrived. Your departure from the scene is the basis of failing to render assistance and the summary charge of failing to provide details after a collision.
Ms Davis' vehicle had come to rest up against Mr Lyons' vehicle. Mr Lyons could not tell if he was injured or not but knew that his car was badly damaged. He could hear Ms Davis and Mr Egan groaning loudly, sounding panicked and in pain.
[4]
Mr Lyons could not get out of his vehicle because it was wedged up against the other vehicle. Eventually, he was able to drive his car forward to the other side of the intersection and get out of his car. He called Triple 0. Ms Davis and Mr Egan were still in their vehicle screaming in pain. Their vehicle had moved a long way from the point of impact, and it was badly damaged.
9. Ms Davis slipped in and out of consciousness. Mr Egan felt short of breath and dazed. He had a sharp pain in his back and his side. When emergency services arrived, Mr Egan was able to get out of the car; he had significant pain through his back, which he described as unlike anything he had previously experienced. Paramedics put him on a stretcher and then into the ambulance.
10. Ms Davis was trapped inside her vehicle for 25 minutes before the fire brigade were able to get her out of the car. She was pale and sweating profusely. She had severe pain in her back and right leg. She described incredible pain as she was moved out of the car, but she was screaming as this happened.
11. Both were taken to the Royal Melbourne Hospital.
12. About 20 minutes later while Ms Emeli and her son were still at the scene, you returned. They were able to identify you as the driver of the vehicle which caused the collision. You were handcuffed and searched. You gave police your surname. Police noted that you were unsteady on your feet and you smelled of alcohol. You were bleeding from one of your arms. You were asked to take a preliminary breath test which you eventually took, you said 'no comment'. The result of the preliminary breath test was 0.197. You refused to go to the Sunshine police station for an evidentiary breath test.
[5]
Ms Davis was treated at the Royal Melbourne Hospital and then transferred to the Brunswick Private Hospital on 6 December 2023. Her injuries included:
[6]
(a) laceration to her spleen - grade 2;
(b) extensive pelvic fractures;
(c) a transverse fracture of her fifth lumbar vertebra;
(d) a pneumothorax in her chest; and
(e) fractures to her jaw.
[7]
She was also noted to have old rib fractures which appeared to have been refractured. Her jaw required the insertion of a metal screw and plate and the extraction of teeth. Her pelvic injuries were managed via an extended period of non-weightbearing.
On 8 December 2023, she was re-admitted to the Royal Melbourne Hospital with abdominal pain due to the ruptured spleen. She required a radiological procedure to block off the blood supply to that part of the spleen and spent a period in ICU.
She was discharged to the Brunswick Private Hospital on 13 December 2023, where she remained until 15 January 2024, some 48 days after the collision.
Mr Egan was treated in hospital for multiple broken ribs and a lacerated kidney. He was discharged on 6 December 2025, so eight days after the collision.
You were interviewed on 1 December 2023. You said you recalled parking your mother's Kia Sorrento behind the Westpac Bank near the Footscray railway station. You remembered telling your partner that once you parked the car there, you were going to start drinking and that you planned to come back and get the car the following day. You said you must have gotten too drunk. You said you consumed at least two or three litres of cask white wine, starting at around
[8]
3.00 pm. You said you did not remember getting back into the car and driving. You did not recall the collision. You said you were not on your phone. You were listening to the radio. You do not recall how you got from the crash site to your house. You said there was no excuse for what you had done. You said you did not remember fleeing the scene, returning 20-30 minutes later and undergoing a preliminary breath test. You said you have a problem with alcohol which you use to deal with stress. You said you hoped the victims were alright.
[9]
Ms Davis provided a victim impact statement which was read in the court by the prosecutor Ms Ottrey.[2] It was a detailed and eloquent description of the very severe impact that this collision has caused for her.
She said this, summing up the overall impact:
[10]
The whole thing has just utterly ruined my life. The person I was is gone. I wish I could get her back. Dwyane wishes he could get her back. My friends wish they could get her back. I look at old photos of myself and remember feeling so happy and full of life. It just feels like it is so long gone now and I just don't know how I could ever feel like that again. The feeling of hopelessness is so devastating. I have days where I am so angry with the world and at him for what happened. I have days where I feel sorry for what he has done to his life. I have days where I just feel like I want to give up. Things are just so hard. I have so many thoughts of what is my purpose now. Why did I survive only to live this life which feels bleak and unfulfilling.
[11]
She describes that the relationship with Mr Egan has been strained, after a healthy relationship of 25 years. Other relationships such as with her three old year niece has also been affected. She says she is in pain every day and everything is an effort. She does not want to leave her house and that has affected her friendships because she never wants to go out. The thought of driving scares her and when she is in the car, she freezes when she sees oncoming cars at an intersection. The fear of travelling has impacted how often she can drive to see her mother and her father before he died.
The injuries to her mouth resulted in dentures, which means she is restricted to food that is easier to eat and less painful for her. She details the multiple serious injuries she sustained in the crash, including the ruptured spleen, the fractured pelvis and other injuries. She required modifications to her house to accommodate the wheelchair after the crash.
For the first year and a half she had regular physio sessions. Doctors have told her she has made as much progress as she was expected to make, but she does not feel anyway near a full recovery and describes this as 'absolutely devastating'.
Her car and her mobile phone were destroyed in the crash, and she has incurred medical expenses for various osteopathy sessions and dentures which were not covered by the TAC.
Physically and psychologically, she has been severely damaged by this collision and that is a significant matter to take into account. She also says she is on medication for depression and it is a battle to get through each day.
Mr Egan did not make a victim impact statement, but he refers to the impacts of these events in his police statement, where he said the crash had left him feeling not the same person that he was. He feels anxious on the road and wary of other cars. He said the collision, and the aftermath of the collision, has put a lot of strain on his relationship with Kate, 'because our lives have changed forever'. He refers to the financial expenses as well.
Mr Lyons, who witnessed the collision, also said in his statement that he thought people were dying in front of him and there was nothing he could do to help them and that is a memory that has stayed with him.
All those impacts are relevant matters for me to take into account in sentencing in this case.
[12]
Turning then just briefly to your criminal history. You have a criminal history which commences in December 2016, when you were approximately 19 years old. You were convicted of assault and dishonesty offences at the Sunshine Magistrates' Court on that occasion. You have prior convictions for family violence offences and in 2018, you received a sentence of imprisonment of four months. I understand the complainant in those matters was your partner, Ms Gavranic who has supported you through these proceedings. She is the mother of your children. After your sentence in 2018, there were no further appearances until 2022. Then in 2023, you appeared twice for family violence offences.
Your most recent appearance was in April 2023 for contravening intervention orders and a Community Corrections Order. You were further placed on a Community Corrections Order for a period of 24 months. That order was in force at the time these offences were committed and that is an aggravating feature.
You do not have a significant road traffic history apart form a prior conviction in 2018, for driving as a learner without an experienced driver in the vehicle. However, as I read the material tendered, there is a common thread of alcohol abuse running through your criminal history and in imposing community corrections orders with rehabilitation conditions, including for alcohol problems, the courts have attempted to address the cause of your offending without success over the years.
[13]
Negligently causing serious injury carries a maximum sentence of 10 years' imprisonment. It is an inherently serious offence. In the case Di Gergorio v The Queen[3], Justices of Appeal Ball and Kaye said
[14]
Commonly instances of the offence of negligently causing serious injury by driving involve extreme negligence, a very high risk of collision and the consequent risk of serious injury.
[15]
In Harrison v The Queen[4], the Court of Appeal said that
[16]
'When the degree of negligence of the driver increases, there is a corresponding increase in the likelihood of devastating consequences'.
[17]
That is also a relevant observation to these facts.
[18]
The prosecution submitted and I accept that the degree of negligence involved in your driving was very high. To quote a judge of this court, Judge Rozen in the case of Morgan[5], which was relied on by the prosecution, this driving involved a deliberate and wilful breach of the fundamentals of road safety. The prosecution pointed to the following factors:
[19]
(a) You were speeding. Independent witnesses described you as flying towards the intersection really fast, faster than normal speed;
(b) You had a very high blood alcohol reading. As a probationary driver your blood alcohol level should have been zero, it was 0.197. On your own admission you had been drinking cask wine for hours;
(c) You failed to stop at a red light. I agree with the prosecution that the likelihood of devastating consequences, where not giving way to a red light in a major intersection at speed is very high.
[20]
Each of these factors significantly increased the likelihood of a catastrophic collision involving the risk of serious injury or death.
[21]
As I have already remarked in this case, the victim sustained multiple substantial and severe injuries. Her injuries were both life endangering and substantial and protracted, both limbs of the definition of serious injury.
[22]
Turning then to the failing to render assistance charge. The maximum penalty for this offence was increased in 2005 from two years to 10 years. The reason for this dramatic increase was explained by the Court of Appeal in the case of Sarikaya v The Queen_[6]__:_
[23]
'... the increase in the maximum sentence was designed to dissuade persons, involved in an accident, from fleeing the scene. The fivefold increase in the maximum sentence makes it plain that Parliament intended that general deterrence be given significant weight in the exercise of the sentencing discretion ....'[7]
[24]
The Court of Appeal has said breaches of the section are 'regarded very seriously and substantial terms of imprisonment have been imposed'.[8]
The obligation to render assistance continues whether others were present and able to assist which was the case here.
Your conduct in running away from the scene, after such a serious collision where serious injuries were high probable was cowardly and inexcusable.
However, in assessing the overall gravity of this offence, I have had regard to the presence of other people at the scene who called Triple 0 and that you returned to the scene 20 minutes later. I accept that you returned because of a guilty conscience and that you were immediately identified as the offender and apprehended by police.
[25]
Your personal circumstances are described in the psychological report tendered from Ms Jane Bayutti[9] and in the defence written submissions.
You are now 28 years old. You were born in Kenya. You have a biological sister who is 19 years old and a paternal half-brother who lives in Queensland. You describe a positive relationship with your sister, although you accept, she worries about your wellbeing and the strain associated with these matters.
You had little contact over the years with your half-brother.
You have a positive view of your formative years in Kenya. You were raised by your mother. Your father was living in Australia for employment reasons. Your parents were still together, but the relationship was distant because of your father's prolonged absences.
When you were seven years old you relocated to New Zealand with your mother. You obtained New Zealand citizenship. You recall your father visiting from time to time, staying for short periods before going back to Australia.
At around the age of 13, you relocated to Queensland. You say your mother moved aiming to have closer contact with your father. Soon after you arrived, your father relocated to Melbourne for employment. Around 2012, you moved to Victoria. Your father stayed with the family for short periods, but his presence gave rise to family conflict. This escalated and you describe your father being physically and emotionally abusive towards yourself and your mother. You describe intervening to protect her. You left the family home due to physical conflict with your father and stayed with friends and extended family, including your aunts.
You spent a year in Africa when you were 17.
You describe good experiences at school, and you completed VCAL. You then started employment in civil construction which lasted for about eight months. You worked as a machine operator for approximately three years. You lost that employment because you had not received the COVID vaccine, but you later returned to that role.
When you were 24 years old you worked as a cleaner, but that did not last due to issues with the industrial chemicals. That was your last fulltime employment, although you have had some brief periods of work obtained through SEEK in labouring and civil construction roles.
Your first intimate relationship started when you were 18 years old with
[26]
Ms Jasmine Gavranic, who attended court to support you and provided a letter of support.[10] That relationship lasted for eight years, and you have two sons who are aged eight and five. The relationship broke down due to financial strain and your heavy alcohol use, which caused conflict. There were multiple family violence intervention orders taken out against you, but there were several reconciliations. You served a four-month prison sentence in 2018 for breaching a family violence intervention order. Ms Gavranic says in her letter that your conduct towards her has not been violent or abusive since then and you are now friends and co parent harmoniously. She says you have expressed shame and remorse to her for the collision you caused. She refers to the impact of your imprisonment on her and your children.
11. Your alcohol use started at the age of 16 which you describe as a coping strategy in response to your conflict with your father. Alcohol has been a problem for you since that time.
12. You describe an incident in 2023 involving your youngest son, who fell from a second storey balcony which resulted in a skull fracture and hospitalisation. You describe an escalation in drinking after that incident. In terms of alcohol treatment, you completed a one-month alcohol and drugs program in February 2025 as part of your Community Corrections Order.
13. At the time you saw the psychologist Ms Bidjossian, you referred to engaging in detoxification at the Sunshine Hospital.
14. You told Ms Bidjossian, and this is referred to in the defence submissions, that in the lead up to the collision, you were drinking with your friends in Footscray, and you received a call from Ms Gavranic who told you that your younger son was having a seizure and was being taken to the Sunshine Hospital. You said that you drove through the red light on the way to the hospital. In the end, you did not rely on this explanation on the plea. It was contested by the prosecution and inconsistent with what you said to the police when interviewed. There was some evidence confirming the seizure, but whatever the reason, you were on the road with that level of alcohol in your blood does not matter or reduce the gravity of the offending or your culpability for it, but in circumstances where you do not rely on it, I am not acting on that explanation.
[27]
You pleaded guilty at a case conference hearing in this matter held in September last year. You earlier offered to plead guilty to the negligently causing serious injury offence, the most serious charge on the indictment. The prosecution accepts that the plea offer to that charge was at the earliest opportunity. Your guilty plea has significant utilitarian value. You have saved the use of resources required for a trial and you have spared the witnesses the ordeal of having to give evidence and relive these events. Your plea is consistent with a willingness to facilitate the course of justice, and I am satisfied it indicates some remorse.
There are other indications of remorse in the material. I have already referred to the letter from your former partner, Ms Gavranic. Additionally, I have a letter that you wrote to the court in which you do express remorse and insight into the seriousness of this conduct.[11] You also set out some of the steps you have taken towards rehabilitation. There are letters from your mother, your brother and your sister that support the submission that you feel very sorry about this offending, and you expressed remorse to the psychologist.
The prosecution pointed to the inconsistency in your explanations as to what happened in the lead up to this collision, compared to what you said in the record of interview. However, in the end, because you did not pursue that explanation, I have largely put it to one side, and I accept you do have some remorse for your conduct.
[28]
It is now more than two years since you were arrested and interviewed for these offences. Charges were not laid for some 11 months after the interview. I was told that was because of police workload issues. You have therefore had these matters hanging over your head for a significant period, aware that you faced a substantial period of imprisonment. I am satisfied that you have suffered heightened stress and anxiety relating to these proceedings.
[29]
A psychological report was tendered.[12] Ms Bidjossian said at paragraph 122 of her report that you present with complex post-traumatic stress disorder symptoms, including intrusive imagery, hyperarousal, avoidance and heightened threats and sensitivity which stem from early familial conflict and childhood trauma. She said you also meet the criteria for major depressive disorder characterised by persistent low mood, reduced motivation, sleep disturbance and functional impairment.
She refers to your alcohol use disorder as a maladaptive coping strategy which began in adolescence. She refers to all these factors as destabilising factors at the time of the offending.
She says that your parental role and your consistent engagement with your children provide strong motivation for you in the future and is a notable protective factor. She said you have demonstrated some insight into your alcohol use and its impact and a desire to address that, along with your broader mental health.
At paragraph 129, she says that imprisonment will weigh more heavily on you and that your mental health could be significantly exacerbated in prison where safety concerns and stressors might trigger hyperarousal and impulsive behaviours.
She also says the lack of tailored mental health support in prison could hinder your ability to effectively manage your trauma-related symptoms, leading to a decline in your mental health and emotional wellbeing. She also refers to the strain imprisonment will place on your relationship with your children, which will exacerbate your feelings of guilt, helplessness and distress. I take this later matter into account as increasing the weight of the sentence on you.
Ms Bidjossian refers to a range of disruptive impacts from a prison sentence which she says could exacerbate your depressive symptoms and increase your vulnerability to a further mental health decline and elevate the risk of suicidal ideation.
The opinions of Ms Bidjossian in relation to the effect of imprisonment on your mental health provide some support for the application of limb 5 of Verdins',[13] in that your psychological conditions will add to the burden of your imprisonment. I accept this and I have taken that into account as a mitigating factor. However, in my opinion, limb 6 does not apply because the test in Verdins is that there must be a serious risk that imprisonment will significantly worsen the offender's mental health. In my opinion, this is not how the risk has been expressed in the psychological report.
At the time you were interviewed by Ms Bidjossian, you were still consuming large amounts of alcohol. She said you were consuming approximately one slab of beer on the weekends and a bottle of spirits per day. You told her that your drinking was still causing you financial hardship. She found that you were engaging in hazardous use of alcohol. It was not submitted that you have overcome your alcohol problem.
You were assessed as having a high risk of general reoffending based on your maladaptive coping strategies, particularly alcohol consumption.
You have had an opportunity to do much more to address your rehabilitation since the collision, but you are still drinking very large quantities of alcohol, or at least you were before you were remanded in custody. This event has not been a sufficient wake-up call for you to meaningfully address your alcoholism and the assistance you have received. In the past, on Community Corrections Orders has failed as well.
On the other hand, you have a supportive family and former partner, and you have the motivation to look after your children as a parent. The letters tendered from your mother, sister, brother and former partner were strongly supportive of you.[14] You have also undergone some counselling and drug treatment and other psychological assessments. Since I have remanded you in prison, you have completed a couple of courses over the short period you have been in custody.
The key to your rehabilitation will be for you to address your alcohol problem. If, when you are released from prison you continue drinking at the same levels, you will undoubtedly reoffend. However, the sentence I impose will be substantial and you will be a different person when you are ultimately released and there is some hope for rehabilitation. In the end, I take a guarded view of your prospects of rehabilitation.
[30]
You are not a citizen of Australia; you are a permanent resident. The Migration Act1958(Cth) makes visa cancellation mandatory for an offender sentenced to one year imprisonment or more, unless the relevant Minister is satisfied there is a reason to revoke the cancellation.[15] I do not know if you will ultimately be deported or not and I do not sentence on the basis that you will be; however, I accept that the risk of deportation is a mitigating matter in this case, in that it will increase the burden of your sentence and it may deprive you of the opportunity to stay in Australia where you have lived since you were a young man or a young adolescent and where your family still live.
[31]
A range of cases were discussed on the plea involving sentences for negligently causing serious injury and some which also involved failing to render assistance. I have had regard to those cases as indicative of current sentencing practices. They are a guide, but not a controlling factor in deciding the appropriate sentences.
[32]
The totality principle requires the overall sentence I impose must be just and proportionate to the total criminality of your offending. In this case, there will be substantial concurrency between Charges 1 and 2 on the indictment. Although Charge 2, failing to render assistance, does involve significant additional criminality and there must be a period of cumulation imposed for that offence.
The non-parole period is the minimum period that must be served before you become eligible for release. It must be consistent with the objective gravity of the offending. It mitigates punishment in favour of rehabilitation. In this case, I have allowed for a relatively significant period of supervision if you are released at the expiration of the non-parole period.
In sentencing you for this serious offending of high objective gravity, I must emphasise general deterrence, denunciation and just punishment. The offending here has had a life altering effect on Ms Davis and Mr Egan, her partner, and you must also be justly punished for what you did. Deterring you from further offending and protecting the community for your offending are also relevant sentencing purposes, but I must not lose sight of the need to facilitate your rehabilitation.
[33]
I turn then to sentence him in this matter. For Charge 1, the offence of negligently causing serious injury, you are convicted and sentenced to four years and six months imprisonment.
For Charge 2, failing to render assistance, you are convicted and sentenced to 22 months imprisonment.
For the summary offence of failing to provide details, which really covers the same ground as Charge 2, you are convicted and discharged. Six months of the sentence on Charge 2 is cumulative on the base sentence for Charge 1. That makes a total effective sentence of five years. I fix a minimum non-parole period of three years. In relation to Charge 1, pursuant to s89(1A) of the Road Safety Act, any licence you hold is cancelled and you are disqualified from obtaining a further licence for a period of two years.
In relation to Charge 2, the mandatory period of cancellation and disqualification is four years and I make that order. In respect of these matters I make a finding under s89C(1) that the offences were committed under the influence of alcohol. I declare pre-sentence detention to be deducted from the sentence I have imposed of eight days.
Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty, the sentence to be imposed would have been six years and ten months, with a minimum non-parole period of four years and ten months. All right, any matters to raise?
MS CUSTOVIC: No, Your Honour.
HIS HONOUR: No, all right.
MR SMEDLEY: Nothing further, Your Honour.
HIS HONOUR: No, all right. All right, did you want that open for a moment. He is still there, but I - all right, I will leave it open if you want it left open.
MR SMEDLEY: Yes. Thank you, Your Honour.
HIS HONOUR: All right, very well thank you. I will adjourn until 2 o'clock.