R v Singh

R v Singh - [2021] NSWDC 759 - NSWDC 2021 case summary — Zoe

[3]

The Agreed Facts

At the time of the offending, Mr Singh was living at Terrara Close in Jerrabomberra. At the time of the incident, he held an active ACT driver's licence.
About 12.45pm on 7 September 2020, a witness observed a white Toyota Prado stationary in O'Sullivan Road in Jerrabomberra. The offender was driving this vehicle. O'Sullivan Road is within approximately half a kilometre from the offender's home address at Terrara Close in Jerrabomberra. Over the following minutes, the vehicle was observed by a number of witnesses to be driving and then stopping in Franklin Court, Miles Place and Stella Place in Jerrabomberra. These three streets are all residential cul-de-sacs.
At 1.05pm that same day, the offender's vehicle was seen driving west along Stella Place, Jerrabomberra, before stopping outside 3 Stella Place for approximately one minute. The vehicle then conducted a U-turn, returning in an eastly direction towards Franklin Court.
About 1.08pm, the vehicle was driving south along Franklin Court, before turning right into Stella Place at high speed. The vehicle mounted the southern curb, causing damage to the garden edging of 1 Stella Place, before destroying a brick mailbox. This resulted in bricks and concrete spraying over the roadway and neighbouring yards. The vehicle continued west along the southern curb, before veering right, crossing the roadway, and impacting heavily with a metal light pole outside 6 Stella Place. The pole was displaced by the impact, and this caused the vehicle to stop abruptly. The vehicle reversed quickly, before impacting with a small tree. The second impact caused notable damage to the rear of the Prado, and again brought the vehicle to a complete stop. The vehicle then lurched forward, before conducting a U-turn to travel east along Stella Place at speed.
The vehicle then drove north on Franklin Court towards the roundabout intersecting Miles Place. The vehicle was seen to partially complete the roundabout, before coming to a complete stop, facing towards the victim's residence in Franklin Court. The vehicle is reported to have remained stationary for eight to ten seconds. At this time, the victims, Ross Shilling, then aged 73 years and Michael Shilling, then aged 35 years, were both standing near the front door of their residence. Witness accounts describe the vehicle accelerating harshly towards the victims. The vehicle negotiated the driveway entrance of the property by missing two brick pillars, and continued up the driveway, without any attempt to slow. One witness said the vehicle's engine was revving loudly and veering towards the victims.
The offender looked directly at the victims, and this was noticed by the victims. When the offender was about 10 to 12 metres away from the victims, he looked in their direction and extended both middle fingers at them. The victims described this as a rude gesture, colloquially known as a birdie or a middle finger salute.
The front of the offender's vehicle impacted with both victims, before colliding heavily with the front of their residence. Ross Shilling was pinned between the front of the vehicle and the brick structure of the house. The offender was the driver, and the only occupant of his vehicle at this time. He was arrested at the scene, and provided a positive breath analysis for alcohol.
Emergency Services attended to free Ross Shilling, and treat Michael Shilling for a large laceration to his left leg. Both victims were taken to Canberra Hospital for further treatment.

[6]

The injuries to Ross Shilling, relevant to the Form 1 offence

Following the incident, Ross Shilling was treated by ambulance and hospital staff for suspected crush injuries sustained by the vehicle, where it trapped him and pushed him against the front of the building. The sudden impact of the vehicle with Ross Shilling, caused him to be pushed backwards and collide with the brick wall and front screen door of the building, and in doing so, his right shoulder was affected, and he complained of pain in this region. Upon admission to Canberra Hospital, Ross Shilling was seen by doctors and investigated for full-body trauma injuries, including spine, neck, hips and shoulder, with scans and physical examination taking place, of which he was cleared of any life-threatening injuries.
In the days following the incident, further investigation was undertaken on Ross Shilling's right shoulder, as doctors suspected a possible fracture or torn rotator cuff injury. An MRI was done and could not find any signs of skeletal or muscular injury, but rather a sprain or soft tissue damage. Whilst Shilling's condition improved in the following weeks, he has appeared to not have suffered any long-term damage.
Those facts clearly disclose very serious objective criminality. The offender's course of driving created a very significant danger for other road users and members of the public. He drove at a time when he was very well effected by alcohol. His conduct demonstrates a high level of criminality and warrants condign punishment. The sentence imposed must not only punish the offender, but must also deter the offender and others from such conduct.
In respect of sentencing for this offence in R v Manok [2017] NSWCCA 232, Wilson J stated as follows at [78]-[79]: "In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: See R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unreported) per Hunt CJ at CL. That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; any driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress."

[7]

Assessment of the objective seriousness

In assessing the objective seriousness of the offence of aggravated dangerous driving occasioning grievous bodily harm, I have taken into account the following factors: 1. The offending occurred around lunchtime on Monday, 7 September 2020. 2. The degree of intoxication. The offender was driving with a blood alcohol reading of not less than 0.192 grams per 100 millilitres of blood. The prescribed concentration required for an aggravated offence is 0.150 grams per 100 millilitres of blood, the minimum threshold required for an offence of high range PCA offence. The offender's reading was well above the threshold reading. 3. The manner of driving. The offender was described as driving at high speed in a residential area before the offending. He had two other collisions shortly before the offending occurred. His vehicle had mounted a curb in Stella Place, destroying a brick mailbox, before crossing to the other side of Stella Place and impacting with a metal pole and a small tree. The offender then drove to a roundabout out the front of the victim's residence. After remaining stationary for 8 to 10 seconds, he accelerated harshly towards the victims. He continued up the driveway of the property without attempting to slow down. The vehicle then veered towards the victims, and collided with the front of the premises, impacting with both victims, and pinning Mr Ross Shilling between the vehicle and the front of the house. 4. Shortly before the collision, the offender looked in the direction of the victims and made an insulting gesture with his fingers. This demonstrates, in my view, that he was aware that members of the public were at risk from his driving. I do not rely on this evidence to find that the offender intended to cause the victim grievous bodily harm, in circumstances where such a finding would contravene the principles enunciated in the R v De Simoni [1981] HCA 31. 5. The duration of the driving. The offender was first observed driving at 12.45pm and last observed at 1.08pm, just over 20 minutes. He had driven from his home address in Terrara Close, Jerrabomberra, to the vicinity of Stella Place and then Franklin Court. As outlined in the Agreed Facts, the best estimate of the length of the journey is approximately one kilometre. 6. The nature and extent of the grievous bodily harm occasioned. The victim sustained a left thigh wound six centimetres with considerable bruising and moderate swelling. Surgical intervention was required. He spent four days initially in hospital. A second operation was required two weeks later. A third operation was required one month later. I regard the injuries sustained by the victim as being towards the lower end of seriousness for this offence. By those remarks, I am not intending to suggest that the injury was not serious. Rather, it is a recognition that there is a broad range of injuries that come within this offence. Such injuries often being catastrophic, including traumatic brain injuries and paraplegia or quadriplegia.
Having regard to those factors, I assess the objective seriousness of the offending as being just below the middle of the range.

[8]

The guideline judgment of R v Whyte [2002] NSWCCA 343

In determining the appropriate sentence, I have taken into account the guideline judgment of R v Whyte. In Whyte, Spigelman CJ identified the following characteristics of offences under s 52A as follows [204]: i. "A frequently recurring case of an offence under section 52A has the following characteristics: ii. Young offender. iii. Of good character with no or limited prior convictions. iv. Death or permanent injury to a single person. v. The victim is a stranger. vi. No or limited injury to the driver. vii. Genuine remorse. viii. Plea of guilty of limited utilitarian value."
Spigelman CJ also identified a list of 11 aggravating factors as follows [216]-[217]: i. "Extent and nature of the injuries inflicted. ii. Number of people put at risk. iii. Degree of speed. iv. Degree of intoxication or of substance abuse. v. Erratic driving. vi. Competitive driving or showing off. vii. Length of the journey during which others were exposed to risk. viii. Ignoring of warning. ix. Escaping police pursuit. x. Degree of sleep depravation. xi. Failing to stop.
Spigelman CJ noted as follows [228]: "In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion."
The guideline for offences against s 52A(1) and (3) for the typical case, as identified, was stated as follows, at [229]-[230]: "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. In the case of a low-level of moral culpability, a lower sentence will, of course, be appropriate."
There would necessarily be an upward adjustment of the guidelines to reflect the aggravated form of each offence, pursuant to s 52A(2) and 52A(4), Crimes Act. In R v Whyte, it was emphasised that the guideline was not intended to be prescriptive. Spigelman CJ stated at [232]-[233]: "This guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion, taking into account all of the factors required to be taken into account by s 21A, Crime (Sentencing Procedure) Act. This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration."
In relation to the application of the R v Whyte guideline to this offender, he is not a young offender, being 36 years old at the time of the offending. He has limited prior convictions. The injuries occasioned were to a single person, and there is no evidence of any permanent injury beyond a scar. The victim was a stranger. There was no injury to the offender. The offender is genuinely remorseful, and a plea of guilty was entered in the Local Court.
With respect to the Whyte aggravating factors, I do not regard the nature and extent of the injuries as aggravating the offence. There were a number of people put at risk given the course of driving. There was a degree of speed, which was described as excessive in the circumstances albeit, for a limited period of time. The degree of intoxication is relied upon as a statutory aggravating factor. There was a course of erratic driving. I do not regard the length of the journey as an aggravating factor. It has been conceded, on behalf of the offender, that the moral culpability of the offender can properly be described as an abandonment of responsibility.

[11]

The subjective circumstances of the offender

The offender is now 37 years of age.
He has one relevant entry on his criminal history, being a conviction for mid-range PCA in 2009. A fine was imposed. I am satisfied that his criminal history, whilst limited, disentitles him to the leniency that would otherwise be available to a person of good character.
He has an ACT licence. His ACT traffic history indicates that between 2013 and 2020 he was dealt for five matters of speeding.
The offender did not give evidence during the sentence proceedings. The following material was tendered on behalf of the offender: Exhibit 1 - a report of Dr Rose Cantali, psychologist dated 3 August 2020; Exhibit 2 - an affidavit of the offender sworn on 21 October 2021; Exhibit 3 - an affidavit of Amandeep Kaur, the wife of the offender; Exhibit 4 - a letter of Dr Deepak Purl dated 20 October 2021; Exhibit 5 - a letter from Rajeev Mudaliar, 24 October 2021; Exhibit 6 - ASPIRE traffic offender course, Local Court report, 9 June 2021; Exhibit 7 - a report from Narrabundah Medical Practice; Exhibits 8, 9 and 10 - defence written submissions.
The offender's background and personal circumstances are outlined in the report of Dr Rose Cantali (Exhibit 1), the offender's Affidavit (Exhibit 2), and the Sentencing Assessment Report (Exhibit A).
The offender was born in India. He has one younger sister. He migrated to Australia 24 years ago in 1997. He commenced Year 6 in Australia. He reported significant difficulties adapting to life in Australia, and reported some bullying.
He is married and has two children; a son aged 10 and a daughter aged 11. He has been married to his wife, Amandeep Kaur for 12 years. He lives with his family and his mother, father and sister.
He spent most of his youth in Griffith, before the family moved to Canberra and established a family business, being an Indian grocery store. He works in the family business seven days a week. The family owned a farm in Griffith. When the offender was in Year 10, his father suffered a back injury, so the offender became responsible for the farm. He completed Year 12, although reported a difficult adjustment to school.
In 2005, when the offender was 19 years old, he was left in charge of the farm in Griffith while his father moved back to India for business reasons. He lived alone on the farm for three to four years. His mother and sister lived in Canberra during this time. Dr Cantali stated as follows: "On reflection of this situation, Mr Singh recalled feeling psychologically unwell. He described feeling extreme fear of being lonely. He described systems of depression, low mood, low motivation, thoughts of self-harm and sadness. These symptoms continued throughout his time on the farm. He reported developing a liking for alcohol during that time to help him cope with the solitude."
In 2008, when the offender was 22 years old, he went to India and married. Shortly thereafter, his father returned to Australia without any money. The offender reported that he felt his "world had collapsed".
In 2010, when the offender was 24 years old, he moved to Canberra with his family.
In 2011, his father sold the farm in Griffith and returned to India. The offender described that for the next three years, he and his mother and sister suffered great financial hardship. During this time, the offender reported that he felt responsible for trying to maintain the family's business status and financial status within the community. Dr Cantali states: "During that period, Mr Singh's emotional decline impacted on him significantly causing him to seek medical help to manage his symptoms. During that time his drinking also became out of control."
At the end of 2014, seven years ago, the offender obtained a loan to buy a shop in the ACT. He described that he worked hard to establish the business, and in 2015, his financial situation began to improve. In 2017, four years ago, he bought a farm in Belmont to grow fruit produce, and in 2018 he purchased a home. He reported that he currently works seven days a week managing his grocery store.

[12]

The offender's circumstances at the time of the offending

The offender reported that he had woken up at midnight on the day of the offending and consumed whisky. He arose at 3am and continued to drink. He also drank at 5am. Dr Cantali stated as follows: "Mr Singh expressed that in the morning he was ruminating on his life's misfortunes. The idea of reaching his mid-thirties and needing antidepressant medication to function for the rest of his life was depressing for him. He reported coming to the realisation that he needed to beat his alcohol addiction. He recalled thinking about stationing a caravan on his farm in Griffith and "going cold turkey". Mr Singh had decided he wanted to stay on the farm for 5 days to wean himself off his antidepressant medication and become clean."
Despite having considered those future plans, the offender reported that after his wife left that morning, he stayed in his room and continued to drink alcohol. He reported to Dr Cantali that he was experiencing intense stress and anxiety at the time. He said that at some time between 10am and 12pm, he went to his vehicle and began drinking inside his vehicle. This is his last memory prior to committing the offences. He reports that he then woke up to a police officer standing over him, and informing him of the accident. Despite being unable to recall the incident, he reported to Dr Cantali that he was "very remorseful for his actions and the pain and suffering he has caused the victims."
He told Dr Cantali that he did not know the victims, and described the street where the offending occurred as "a random street in his neighbourhood of Jerrabomberra".
The offender told the Community Corrections Officer during the preparation of the Sentencing Assessment Report, that he did not believe alcohol was causal to his offending, and attributed his actions to the side-effects of mental health medication he was taking at the time. This is inconsistent with both the blood alcohol concentration and the report of the events leading up to the offending he provided to Dr Cantali.

[15]

Mental health history

The offender reported that he began experiencing symptoms of anxiety when he was in high school, around 1998 when 14 years of age. He also experienced anxiety when he was living alone on the farm. He recalled extreme stress caused by financial pressures after his father sold the farm and invested overseas. He reported his first panic attack in 2014. After having sleep difficulties in 2019, his GP advised him that he may be experiencing depression and anxiety. The offender disregarded any referral to a mental health practitioner in circumstances where mental illness is not recognised in the offender's culture. He reported that he did not feel mentally well for the last few years. Dr Cantali stated as follows: "He thought once he was financially stable, he would feel better but instead felt numb and spiralling into a void. He was not coping with life and was fearful of himself and the lack of control he was experiencing."
In mid-2020, prior to the offending, the offender reported that he consulted with his GP who prescribed antidepressants. He reported experiencing better moods after commencing the medication, and described himself as calmer and feeling mentally better. However, he reported that relying on medication long-term for a mental health condition, is not acceptable within his culture. He had not disclosed his mental health symptoms or issues to his family.
He described his mental health conditions as becoming more prevalent in recent years, with his symptoms of anxiety and depression escalating. Dr Cantali stated as follows: "The Indian community perceives him as a young and happy man with a successful life whilst he reported feelings of self-loathing. He stated while antidepressants calm him, he has difficulty experiencing positive symptoms and has become withdrawn from society and friends."
Since the offending, he reported that he has become more accepting of his mental health condition, and is committed to taking medication and attending regular therapy sessions. He has also reduced his consumption of alcohol, and no longer consumes it on a daily basis.

[18]

Other evidence tendered on behalf of the offender

Exhibit 2 is an Affidavit of the offender. The offender outlined that he remains employed in the family business, Kitchen King Grocers. He said as soon as he became aware of his conduct, he intended to plead guilty. He explained that there was some delay because the matter was being considered by the Wollongong office of the Director of Public Prosecutions. He said he is truly sorry and deeply regrets the injuries to the victims. He said: "I accept my driving was both utterly uncalled for, and more importantly, extremely dangerous, in terms of potential liability that could have occurred, not only to the victims, but to other road users, and that it occurred in a residential area not far from my home."
Since the offending, he described that he has been extremely upset for the victims and their families, and also his own family, for the predicament they are in. He outlined that he has completed the traffic offender's program which gave him an appreciation of the dangerousness associated with his driving. He confirmed that he has suffered from mental health issues for a long time, that were not treated until after the offending, when he sought assistance from Dr Cantali. He said he now drinks "very little".
Exhibit 3 is an Affidavit from Amandeep Kaur, the offender's wife. Ms Kaur described the offender as a devoted husband and a wonderful father to their children. She described the offending as out of character. She said he is a significant employee in the family grocery business, in circumstances where his parents are elderly, and his father is physically incapacitated due to recent surgery. She also relies on the offender for support in circumstances where her family remains in India. She outlined that before the offending, the offender was under "great stress and mentally unwell". In her opinion, there has been a marked improvement in his mental health and attitude since he has been seeing Dr Cantali.
Exhibit 4 was a letter from Dr Deepak Puri. Dr Puri has known the offender for five years in a personal capacity, and has frequently interacted with him on a social basis. He also regards the offending as out of character. He describes the offender as a devoted family man, who works in the family business, which he describes as quite successful. He said the offender has expressed remorse and contrition for his offending.
Exhibit 5 is a letter from Rajeev Mudaliar. Mr Mudaliar has known the offender for five years. He is a supplier for his grocery store. He described himself as having a strong bond with the offender, both personally and professionally. He regards the offender as an honest and trustworthy person who is highly-regarded within his organisation. He described that, in his opinion, the offender is remorseful and aware of the seriousness of the offending. He described the offender as an integral part of the family business.
Exhibit 6 is a report from ASPIRE traffic offender's program. The offender completed this course online on 9 June 2021. He completed eight modules. He was described as actively engaging in the course, and had provided useful insights to other participants.
Exhibit 7 is a report prepared by Narrabundah Medical Practice outlining the offender's current medications.

[19]

Submissions of the parties

The Crown relied upon comprehensive written submissions supplemented by further oral submissions. The Crown identified the factual matters relevant for the purposes of a consideration of the guideline judgment of R v Whyte. Ultimately, the Crown submitted, that having regard to the objective seriousness of the offending, and the strong need for general deterrence, that no penalty other than full-time imprisonment is appropriate.
Mr Stanton of Counsel, on behalf of the offender, also relied upon comprehensive written submissions supplemented by further oral submissions. In summary, it was submitted on behalf of the offender, that he was entitled to a 25% discount for his plea of guilty, he is extremely remorseful for the offending, he has excellent prospects of rehabilitation, and the Court would find a causal connection between the offender's mental health issues and the offending. It was not suggested that this final matter is in any way exculpatory, but rather than he explains the offender's abhorrent behaviour.
It was further submitted on behalf of the offender, that the Court should take into account the delay between when the matter was taken over by the DPP, and when the offender was able to enter a plea and the matter was committed for sentence. It was submitted that the offender was willing to plead guilty at the earliest opportunity, and that he has been impacted by the delay and the progress of the matter. Further, it was submitted, the Court should take into account his rehabilitation in the intervening period.
It was conceded on behalf of the offender by Mr Stanton, that a custodial sentence was appropriate. Ultimately, it was submitted that any custodial sentence could be served as an Intensive Correction Order in the community. Whilst in written submissions it was noted that an Intensive Correction Order could be for a period of three years, it was agreed during the proceedings that any Intensive Correction Order imposed could not exceed two years in circumstances where the Court is only dealing with the offender for one offence, and taking into account a further offence on a Form 1 (see Abel v The Queen [2020] NSWCCA 82).
I have taken into account the submissions of the parties in determining the appropriate sentence.

At a glance

Court

Decision date

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Judgment (29 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)