DPP v Shahi [2007] VSC 317

2 On 6 December 2005, shortly after midnight, you were driving a Mercedes maxi taxi for an employer-owner. You had been driving taxis then for some 4 to 5 years. You picked up eleven passengers, six male, five female, in Elizabeth Street, near Flinders Street in the Melbourne CBD. All eleven were aged in their late teens. Xavier Salmon was one of the eleven. They asked to be taken to Port Melbourne. Almost as soon as they were in the taxi, you realised that one passenger was smoking a cigarette. You told them to get out. You relented when you were told that they were sorry and would not smoke. On the way to Port Melbourne, there was an incident involving the cricketer, Shane Warne. In the midst of some rowdy but generally good-natured banter, one of your passengers asked him where his wife was. A number of the young men, including Xavier Salmon, were adversely affected by the alcohol they had consumed. More than one of them were drinking in the taxi and had stubbies in their hands. You had little choice but to put up with their rowdiness.

3 After driving down Williamstown Road, you turned south into Centre Avenue, Port Melbourne. Your passengers left the taxi. One of the young men attended on you to pay the fare as you sat in the driver's seat. As that was taking place, Xavier Salmon and another one of the young men chose to start abusing you. Instead of ignoring them, you chose to trade abuse with them. You continued to shout at them, and they at you, as you moved off. You turned right twice to bring you northbound in Centre Avenue. You chose to continue the exchange of abuse. At the northern end of Centre Avenue, you were faced with a choice as to which way you drove. There was conflicting evidence as to which way you drove. Some witnesses said that you drove into the curved road that put you in line to return to Williamstown Road. You claimed that you did not do so, but mistakenly turned right, and then found yourself having to drive south again down Centre Avenue. I take the verdict of the jury to reflect that they were not satisfied beyond reasonable doubt that you drove into the curved road.

4 Once you were facing south in Centre Avenue, you were heading towards Xavier Salmon. He had been shouting abuse at you. He had aroused your anger. A short time later, you had him in front of your taxi. He was one to two metres out from the kerb. He chose not to move out of your path. You chose not to swerve to avoid him. You chose to accelerate, not to brake. You struck him with the left front of the taxi. You did not stop. You drove away from the scene. A short time later you went to the Melbourne East Police station. You there reported damage to the taxi. Only after some time talking about the damage did you also mention that you may have hit someone.

5 You were arrested and interviewed and later remanded in custody. In early March 2006, you were being held at Port Philip Prison. From there, you were able to make telephone calls. At the start of such calls, you, and the person to whom the calls were made, were informed that such calls were being recorded. On 18 March, you made at least three calls to the number where you believed you could speak to your mother. In the course of the three calls, you spoke mainly with your mother, but also with your wife. Your marriage in February 2005 in India was one that had been arranged in India for you by your family. It was followed in November 2005 by the birth of a daughter, Kiran. Your mother came here from India in early February 2006. Your wife arrived here with Kiran from India on 17 March 2006. Subsequent to your arrest, you had been concerned about her coming to Melbourne. Her arrival, and certain things that your wife then said and did, upset your mother. In turn, the stress exhibited by your mother led to you becoming highly stressed. The stressful context helps to explain, but not to excuse, the vitriolic things that you said to your wife during the 18 March calls. After greeting her as "the daughter of a mother-fucker", you said to your wife words to the effect: that if something happened to your mother, you would kill every one of her family; that it would not be an easy death; that you were upset with your wife because she had hidden many things from you. Then when your wife asked whether you did not want to see your daughter Kiran, you replied that you would cut your daughter and give her to animals.

6 Later during the calls, you said to your mother, that you hated your wife, and that you did not care if your daughter died. Later still, your words to your mother suggested that your anger had relented somewhat, but that you still did not want to meet your wife. In the ensuing weeks, your wife and daughter did attend with your mother on two prison visits to you. Nevertheless, your differences with your wife have persisted and a divorce later this year is contemplated.

7 I had placed before me on the plea in mitigation, nine victim impact statements. I have noted that there were some parts of some of the statements that were inadmissible and had to be disregarded. Separately and together, those statements reveal that your crimes have had a devastating impact on many people. Seven of the nine are handwritten. They are from your wife and from six of the ten teenagers who were with Xavier Salmon at the time that he was killed. The last two are those prepared by Xavier Salmon's mother and father. The emotional drain on anyone reading the statements is substantial. But it is as nothing compared to the emotional impact, past and continuing on all nine, but particularly the two parents. Suicide attempts have been made or contemplated. Then existing, and contemplated, study and work plans have been impaired in major ways.

8 I turn to your background, more detail of which is contained in the report tendered on the plea of Ian Joblin, the psychologist who saw you last month. You were born in March 1977 in India. You were the youngest of four children. Your father was a lawyer, who died when you were aged 12. As noted earlier, your mother is still alive. You were raised in Calcutta. You are university educated. You have graduated with a Commerce degree and two diplomas in computer science, for the second of which you studied in Melbourne in 2000 and 2001. You started driving taxis in your first year here, and continued to do so. You worked hard. You saved well. You sent back money to family in India. You bought land. You were in the process of building a home here. You have had no problems with alcohol or drugs. You have no prior convictions. I have adverted to your arranged marriage in early 2005, and to the plan now for a divorce.

9 Mr Joblin's opinion is that you have no psychiatric problem or personality disorder. He pressed you as to matters relating to your motivation for acting as you did on the night of 6 December, without concluding that there were racial or other intolerance factors at work or that there were likely to be ongoing difficulties. It is a pity that he did not see transcript detailing your conversations with your wife and mother. Even allowing for the stress that you were under at the time, there are troubling indications there of a continuing, ruminating anger.

10 I have spent some time reviewing a number of recent cases of appeals as to sentences for manslaughter, threats to kill and culpable driving. There are too many dissimilarities in relevant circumstances for any one case or group of cases to be treated as being particularly significant comparably. Manslaughter convictions arising out of the use of a car are relatively rare. A car can be a very dangerous, indeed formidable, weapon when driven unlawfully. That is even more so when the driver is emotionally stressed. At the critical time, you not only failed to brake, you accelerated. I accept that you could not have known that, because of his over-consumption of alcohol, Xavier Salmon was a particularly vulnerable victim. Nevertheless, you made a series of seriously wrong choices in your driving. No driver should ever drive towards a pedestrian, even at a slow speed, on the basis that the pedestrian will move out of the way. The jury was not prepared to accept that you were acting in self-defence, and that was scarcely surprising in the circumstances.

11 You also made a series of seriously wrong choices in how you dealt with your wife. You not only showed yourself to be totally lacking in empathy for her plight and that of your very young daughter. You aggravated the situation immeasurably by making terrifying threats to her as to her fate and that of your daughter.

12 There are several mitigating considerations that I must allow for. One is that you have no prior convictions at all. Another is that you offered to the prosecution at an early stage to plead guilty to manslaughter, but that offer was rejected. Another is that you have shown at times, as when you were speaking with Mr Joblin, that you feel remorse for the death of Xavier Salmon. Prison will be harder for you than for most. You suffer from depression to the extent that you take medication. You are only likely to receive visits occasionally. Given your lack of priors and your good education, the prospects of rehabilitation are high, although taxi-driving will not be, or at least is not likely to be, an option for you. I will have those good prospects reflected in a somewhat lower non-parole period.

13 I have signed the body sample order, you having consented to that course. I declare that you have served 637 days of pre-sentence detention. I direct that that be entered in the court records.

14 On the manslaughter count, I impose a sentence of 9 years imprisonment. On each of the threat to kill, and threat to inflict serious injury counts, I impose a sentence of 1 year, concurrent as to 9 months with the 9 years imposed for manslaughter. The effective head sentence is 9 years and 6 months. I set a non-parole period of 6 years. I must make an order that any driver's licence held by you be cancelled, and that you be disqualified from obtaining a licence for a period. I fix the period as four years from today.