The Queen v Sahhitanandan [2018] VSC 550

2 At the time of your offending, you were 35 years of age and Ms Sweeney was aged 37.

3 In the early evening of 25 October 2016, Ms Sweeney and a second female complainant ('the second complainant'), who was 14 years of age, were outside the Coles supermarket on Princes Highway in Dandenong. They approached a white 2006 Toyota Hiace van, which you owned but were not driving at that time. It was being driven by Mr Kandipan who was a friend of yours. You had been disqualified from driving in February 2016.

4 The two women spoke to you and Mr Kandipan. After some conversation, you all decided go for a drink together. You and Mr Kandipan went to the supermarket to purchase alcohol. With Mr Kandipan driving, the four of you then drove to a parkland area at the corner of Alsace Street and Alexander Avenue in Dandenong West. Shortly after arriving, you and the second complainant went into the parkland area [redacted]. At one point, the second complainant gave you her mobile telephone number, and you used your phone to call that number to check if it was correct. Police later observed a missed call from your telephone number on her phone.

6 While you and the second complainant were in the park, Mr Kandipan called his friend, Iruthaythasab Amalautpavan, also known as 'Temcy'. Mr Kandipan drove with Ms Sweeney to a nearby service station where he met up with Mr Amalautpavan, who was driving a Toyota Camry sedan. They returned in both vehicles to the park location, and parked near each other. Your van was parked with its front facing towards the park and the roadway behind.

7 You and the second complainant returned to the park entrance area, where the five of you stayed and talked until approximately 10.00pm. Around that time, Ms Sweeney and the second complainant decided to return to Dandenong Central and an argument developed, allegedly over the payment of money. Ms Sweeney asked for Mr Amalautpavan to drive her back to Dandenong Central in his car, which he agreed to do. However, the argument continued and became heated and abusive between you and Ms Sweeney. There is some dispute between those present about why the argument happened and who exactly it was between. In the end, it is not a dispute I need to resolve.

8 While the second complainant walked away down Alsace Street, Ms Sweeney stood about a metre behind the rear of the Hiace van. At one point, Ms Sweeney yelled to the second complainant, 'Did you get the registration?'. You got into the driver's seat of your Hiace van, and Mr Kandipan and Mr Amalautpavan got into the Toyota Camry. You started the engine of your van and reversed it at a fast speed towards Ms Sweeney, who was still standing behind the van. As the van moved towards her, she put up her outstretched hands to protect herself from an impact. The van struck her, causing her to fall on to the ground, and you drove over her.

9 You stopped reversing and proceeded to move forwards while Ms Sweeney was still underneath the van. You stopped then travelled backwards in an arc before driving away. In the position it had been parked, the van could not have been driven out forwards, but had to reverse and turn to leave the area. As a result, Ms Sweeney was seriously injured.

10 A witness who lived across the road saw what happened. In his statement, he said:

At that point the van turned on and slammed into reverse and just bowled her down. I saw her fall from being hit and going under the rear. Her whole body disappeared under the car and he drove forward again three to four metres (almost where it was stopped in the first place). Then reversed probably six to seven metres back ... As he finished reversing he ended (up) facing Alsace Street and sped off down Alsace Street.

11 Your friend, Mr Kandipan, described the events as follows:

I asked Mairown what the argument was about as I couldn't understand the English and he told me she wanted money. I said to him, "Why don't you just give them money and finish this?" He then got into the driver's side of his vehicle. Mairown started the car and reversed the white van and there was a big noise and he drove over a concrete embankment. The younger lady was screaming. I was inside Temcy's car. Mairown was the one who ran over the older lady. I then rang Mairown to tell him he must come back. He told me he would handle the police.

12 After striking Ms Sweeney you drove away, leaving her on the ground. The entire manoeuvre took you about 30 seconds. It is further alleged that Mr Amalautpavan then drove the silver Toyota Camry over Ms Sweeney while she was on the ground.

13 You drove your vehicle to Hemmings Street, Dandenong and asked a friend, Mr Arkelen, for a lift to your home in Jolly Street, Dandenong. After you arrived, Constable Courtney Milner, who was on her way to the scene of the collision, happened to speak to you in the street. She asked you what you were doing and where you were going. She detected alcohol on your breath, but at that stage had no proof you were involved in any offending. She proceeded to the scene of your crime, which was a short distance away.

14 Before me, you pleaded guilty to the summary offence of driving while disqualified. On 15 February 2016, you were convicted of driving whilst exceeding .05 per cent blood alcohol concentration, unlicensed driving and offences occurring after a motor vehicle accident. When you drove the van that struck Ms Sweeney, you were disqualified from driving. The maximum penalty for the offence of driving while disqualified is four months imprisonment or 30 penalty units.

15 Ms Sweeney received very serious injuries as a result of your offending. She was taken for treatment at the Alfred Hospital intensive care unit and placed in an induced coma. Doctors placed her on a ventilator for a period of several weeks so that she would stay alive.

16 Her injuries included two collapsed and punctured lungs, with burst lower lobes. Her left clavicle was fractured and misplaced, and she had a scapula fracture. She sustained ten broken ribs on the right side of her body and multiple fractures to ten of eleven ribs on her left side. She had spinal injury from vertebra cervical 7 to 11, and a number of vertebral fractures. The full description of her injuries is set out in a report of the Alfred Hospital dated 17 April 2018. I note the injuries were devastating and consistent with having been run over by a car.

17 Ms Sweeney has undergone a long period of rehabilitation and the effects of her injuries will be felt for a long time. She was discharged from the Alfred Hospital on 1 December 2016, some 36 days after her admission. It is clear that she will be left with significant residual scarring.

18 You were arrested the following day and interviewed with the assistance of an interpreter at the Dandenong Police Station. Constable Milner was at the police station and recognised you from the previous evening. When you were searched at the police station, you were in possession of an Apple iPhone which belonged to Ms Sweeney. You were also found in possession of a Coles supermarket receipt for the purchase of a bottle of cola the evening before, which was significant in establishing your involvement in the events of the previous night.

19 You initially denied any involvement with this incident, saying that you had purchased a bottle of whisky and returned home. You denied running anyone over. However, after you were told that you had been recognised by Constable Milner, you altered your version of events and said that you went to the park with two females and a friend for some drinks. You said you got drunk and drove yourself home in your van, but maintained that you did not collide with any person.

20 The facts that I have outlined amount to the offence of dangerous driving causing serious injury.

21 The prosecution submit that you were angry because of the argument you had with Ms Sweeney. In a heightened state of emotion, you got into your van and reversed it. At that time, the van had a dirty rear window and side mirrors, and your visibility was restricted. The Crown submit your state of mind as you reversed and drove forward was one of gross indifference to Ms Sweeney, who was then behind your van. In driving both backwards and forwards, you paid no regard or attention to Ms Sweeney's safety and welfare. Your driving carried a high risk of causing serious injury, which is what eventuated.

22 The extent of risk in respect of your driving is to be assessed by the likelihood that something would go wrong, and the extent of harm which would result if it did.[1] Your conduct involved a high risk of injury, as you knew Ms Sweeney was nearby. I accept your vision may have been obscured to some degree, but you reversed quickly without looking. You then moved forward, and reversed again. Any lack of visibility meant you should have been all the more careful, and does not reduce the seriousness of your offending.

23 The Crown submitted that I could not be satisfied beyond reasonable doubt that you knew you had struck your victim at the time the events occurred. However, your friend rang to tell you in the next two minutes, so you then knew, yet chose not to return to assist your victim or to acknowledge and admit responsibility for your offending. Indeed, you denied involvement in the events until you were confronted with incontrovertible evidence.

24 There is no disagreement that the injuries you caused were very serious, and will have lifelong effects to Ms Sweeney. As well as the pain she suffers, she will have residual scarring that will remind her every day of your actions.

25 As noted, it is alleged that Mr Amalautpavam also reversed the other vehicle over Ms Sweeney. The Crown submits that I should be satisfied that this did not cause injuries to Ms Sweeney. On the other hand, your Counsel submits that at the committal hearing, the evidence on this issue was left unclear and it is possible that at least some of Ms Sweeney's injuries occurred as a result of the other car running over her. It might also be said that the incident with the second car added to the overall trauma of the events.

26 The evidence does not allow me to be adequately certain that you caused all of Ms Sweeney's injuries by hitting her with your car. By your plea, and the concession made on your behalf, it is accepted your actions caused catastrophic injuries to your victim. It is unnecessary to apportion precisely the injuries that were caused by either vehicle. What can be said is that, but for your vehicle striking and running over Ms Sweeney, it is far less likely she would have been hit by the other car.

27 It was conceded on your behalf that your offending was serious. You were highly intoxicated, you were disqualified from driving and you inflicted grave injuries. You were in no state to drive and you exercised very poor judgment in doing so. The offence of driving while disqualified is an aggravating factor.

28 As to the objective seriousness of your offence, the Crown submits it falls within the upper end of mid-range to the lower end of high range. Your Counsel accepts it was at mid to high level of seriousness. I note you were not engaged in street racing or dangerous overtaking, the driving occurred over approximately 30 seconds, and there is a lack of evidence that you knew Ms Sweeney was there or that you had struck her. Given the circumstances, I accept that your offending does not fall into the worst category of this type of offence. However, despite the limited length of driving, the injuries you inflicted were very serious. Further, once you knew that you had struck her, you ignored her suffering.

29 In all the circumstances, your offending is objectively serious and is to be placed in the mid to upper level of seriousness for this type of conduct.

30 Katherine Sweeney made a Victim Impact Statement which outlines a number of consequences your offending had on her. She describes waking up from a coma and not being able to understand what was going on. This was a terrifying experience for her, and she felt as though she was stuck in a horrific dream, carrying with it, intense pain. She describes receiving the heartbreaking news that she may never be able to walk again. Fortunately, she has recovered to the point where she can walk, but says she can walk no further than the mailbox at the end of her driveway before she begins to experience excruciating pain. She describes her broken collarbone and shoulder blades, and experiencing a feeling of wanting to die.

31 Ms Sweeney now relies on her partner to help her with everyday tasks, including putting her socks and shoes on, cooking, cleaning and assisting her in and out of the shower. She cannot stand for more than a couple of minutes at a time. She describes having nightmares and flashbacks, especially of the moment she went under the van. She describes how her life has been turned completely upside down and she suffers bad memories and constant pain. She is, nevertheless, grateful to be alive.

32 Ms Sweeney has suffered significant and long lasting impacts as a result of your actions.

33 You are now 37 years of age. You grew up in Sri Lanka and came to Australia as a refugee in 2011. Your life was described as not one of opportunity or luxury, but as one punctuated by experiences of loss and war, and displacement within your own country. You experienced a lot of trauma in your upbringing and your father was killed in 1998. You report being persecuted by opposing forces.

34 You are married with three children and have not seen them in six years. You fled Sri Lanka in 2011 and arrived in Australia in 2012. You were granted refugee status and a bridging visa. You hoped that your family would join you. From 2012 to 2014, you could not work, as this was a condition of your visa. You were forced to rely on the goodwill of others. Over that time you were not antisocial, and you did not offend. Once you were able to, you got a job and you worked hard.

35 However, at some point, you received the news that your wife had moved on, and it appears your marriage came to an end. Following that news, you began to drink heavily. You had difficulty sleeping and drank excessively. By 2015, you had started a pattern of self-medication that continued up to the time of this offending. You had few friends and had no-one sufficiently invested in your life to intervene and give you support. These appear to have been your circumstances at the time of your offending.

36 Following your arrest, you spent 104 days in a prison remand setting before being granted bail. You are presently on bail, however your bridging visa expired and your application for a protection visa was refused. You are now an unlawful non-citizen on a criminal justice stay certificate, which prevented you from being deported until these proceedings are finalised.

37 You have now spent 527 days in immigration custody at the Maribyrnong Detention Centre in isolated and solitary conditions, awaiting the resolution of these proceedings. You are desperate to see your children, but at the same time, realistic that life may be difficult for you in your home country when you return. Since the hearing of your plea, you have been remanded in prison custody for 62 days. Altogether you have been in some form of custody for 693 days since your arrest.

38 I was provided with a report from Clinical Psychologist Carla Lechner. Ms Lechner described you as being of average intelligence, and not suffering from any psychosis. However, you suffer from a major depressive disorder which pre-dates your offending. You were described as a man who had a heavy dependence on alcohol, and was depressed, isolated and now miserable, in an environment where you are not receiving treatment. When assessed by Ms Lechner, you were in detention and caught in a pattern of depressed and negative thinking, in a 'soul-destroying' situation. She stated you were in a period of deep depression and were abusing alcohol and cannabis around the time of your offending.

39 Although you are keen to return to your homeland to support your children and mother, you are anxious about what fate awaits you upon your return. Ms Lechner's report also indicates that an additional lengthy time in custody is likely to lead to a further decline in your mood.

General deterrence, denunciation and punishment

40 Both the Crown and your Counsel accepted general deterrence, denunciation and punishment are important factors in your case. It is well understood that general deterrence and denunciation are primary considerations in cases involving dangerous driving causing serious injury. You drove your van in a dangerous way when you were angry, and affected by alcohol. It needs to be clearly understood that the size and power of a motor vehicle driven in a dangerous manner, even for a short period of time, can result in the infliction of catastrophic injuries.

41 The sentence to be passed must deter others from engaging in similar conduct and strongly denounce your conduct.

Specific deterrence and protection of the community

42 You have a prior conviction of some relevance. On 16 February 2016, you were convicted at the Dandenong Magistrates Court of having driven a motor car while in excess of the prescribed concentration of alcohol. You had a reading of .109 per cent blood alcohol concentration. You were also convicted of unlicensed driving, failing to stop after an accident, and failing to render assistance. You were fined $800 for all your offences, and disqualified from driving for 12 months from that date. You should not have entered your van and driven on this night.

43 There is no doubt that you will be deported after you have served the sentence that will be imposed today. You have expressed the desire to return to your home country but I acknowledge that you are anxious about what awaits you there. Furthermore, I have taken into account that your intention in coming to Australia was to find a new home, and eventually have your wife and children join you here for a new life. Those hopes have been destroyed, largely as a result of your own actions and circumstances. Nevertheless, I take into account these matter insofar as they affects your personal situation.

44 You have pleaded guilty and as a result you will be sentenced to a period less than what you would otherwise have been sentenced. Your plea has utilitarian value in that it has saved court time, and importantly, has saved the victim from having to give evidence.

45 In assessing the weight to be given to these aspects, I am conscious that there was an element of callousness in not returning to the scene when you were told what had happened, and that you continued to deny your involvement. However, you have had two years to reflect on your offending and I am satisfied you are now remorseful for what happened. I do not sentence you on the basis that you intended to harm your victim, or that you knew you had struck her prior to the point when you were told that you had.

46 You have been diagnosed with serious major depression. I accept that principles five and six of the principles set out in R v Verdins[2] apply to your case. It appears likely you will find serving a term of imprisonment more onerous than a person of normal health, and there is a risk that imprisonment will have a significant adverse effect on your mental health. However, it was conceded that these principles had modest application in your circumstances. I have taken them into account as mitigating factors moderating the appropriate sentence to be imposed.

47 As to your moral culpability, it was not argued that there should be a reduction in your moral culpability by virtue of your depressive condition. With regard to your driving of the motor vehicle, I accept there is no evidence that you intended to harm your victim. However, your driving was dangerous and created an obvious risk of causing serious injury. Your actions inflicted particularly serious injuries that will have enduring impacts on the victim, Ms Sweeney. In all the circumstances, I assess your overall moral culpability as being within the mid to upper-range.

48 You have spent a total of 166 days, over two periods, on remand in prison. You were initially remanded in prison custody for 104 days, before being granted bail in respect to these matters. Upon being bailed, you were immediately taken into immigration detention, where you remained for 527 days until the conclusion of the plea hearing in this matter. You were then remanded back into prison custody for a period of 62 days until today.

49 In my opinion, the period of immigration detention is not calculable as pre-sentence detention for the purposes of s 18(1) of the Sentencing Act 1991, as you were in detention for a reason not related to these proceedings. You were taken into immigration detention because your bridging visa had expired and your application for a protection visa was refused, so you had become an unlawful non-citizen.

50 As it is not to be regarded as pre-sentence detention, each day of that period of immigration detention should not result in a numerically equivalent reduction in the sentence I will impose. The period of immigration detention is nevertheless relevant to the assessment of your sentence.

51 In Underwood (a Pseudonym) v R (No 2),[3] the Court of Appeal concluded that a person in a similar position to you should have his or her time spent in immigration detention taken into account in a 'broad and practical way' in the assessment of the sentence.[4] Without further elucidating the phrase, the Court affirmed the general principle that 'delay intervening between the offending and final resolution of criminal proceedings can, in recognised circumstances, be a significant factor going in mitigation of sentence'.[5]

52 The Court in Underwood found that the sentencing judge in that case 'afforded the time that the appellant spent in immigration detention too little weight in the sentencing synthesis'.[6] The Court further held:

Fairness dictated that the sentence imposed upon him ought reflect the fact that the appellant had been kept in suspense, with charges hanging over his head for two years, in circumstances where he was deprived of his liberty during that period.[7]

53 In that case, the applicant's time in immigration custody had been 'caused by the delay in the matter coming to trial'.[8]

54 These expressions confirm it is appropriate to consider your immigration detention in the overall intuitive synthesis of the sentencing process, rather than declaring a pre-sentence detention period to be deducted after the sentence is imposed.

55 The delay in finalising your case has been almost two years, of which a significant portion has been spent in immigration detention. During this time, you were in a secure, guarded and locked environment where you did not have freedom to come and go. With particular emphasis on these practical consequences, I find that the period you spent in immigration detention should be regarded as a significant factor in mitigation of the head sentence and non-parole periods to be imposed.

56 I also take into account that you were facing a charge of attempted murder during your time in custody until May 2018, when you decided to plead guilty to a significantly less serious charge. The factors of delay and uncertainty together suggest significant mitigation in your case is appropriate. However, as stated, you were in immigration custody for a reason not related to these proceedings. This militates against giving you full credit for the period you were in immigration detention, and I will moderate the weight I attach to it.

57 Nonetheless, in conformity with the principle expressed in Underwood, the sentence I will impose on you will be significantly reduced as a result of the mitigating effect of your period of immigration detention.

58 I decline to precisely identify the period of imprisonment I would have sentenced you to but for the period of your immigration custody, as it is inappropriate to do so. For the Court to make such a declaration would, in my opinion, contravene the instinctive synthesis approach to sentencing. I note there is no legislative provision that permits or directs such a declaration to be made. Further, in light of your pleas of guilty, I would consider the making of such a declaration to be incompatible with the declaration I am required to make under s 6AAA of the Sentencing Act 1991.

59 On the offence of driving in manner dangerous and causing serious injury, you will be sentenced to two years and three months' imprisonment.

60 On the charge of driving whilst disqualified, I sentence you to two months' imprisonment. I order that one month of that term of imprisonment is to be served concurrently with the sentence I have passed in relation to driving in a manner dangerous causing serious injury. Your total effective sentence will be two years and four months.

61 I order that you serve a period of one year and six months' imprisonment before being eligible for parole.

62 Pursuant to s 89(1)(c) of the Sentencing Act 1991, I further disqualify you from obtaining a driver licence or learner permit for a period of four years.

63 Pursuant to s 89C(1) of the Sentencing Act 1991, I declare that it be entered into the record that you committed the offence under s 319(1A) of the Crimes Act 1958 while under the influence of alcohol.

64 I declare that a period of pre-sentence detention of 166 days not including this day be reckoned as having been served as part of this sentence under s 18 of the Sentencing Act 1991.

65 I declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty to the offences of driving a motor vehicle in a manner dangerous causing serious injury and driving whilst disqualified, I would have sentenced you to a period of three years and six months' imprisonment, with a non-parole period of two years and six months.

[1] King v The Queen [2012] HCA 24; (2012) 245 CLR 588; Pesa v R [2012] VSCA 109 [21].

[2] (2007) 16 VR 269; [2007] VSCA 102.

[3] [2018] VSCA 87 ('Underwood').