District Court New South Wales Medium Neutral Citation: R v Singh [2024] NSWDC 261 Hearing dates: 10/5/24, 24/5/24 Date of orders: 24 May 2024 Decision date: 24 May 2024 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Re Aggravated dangerous driving occasioning death – Convicted and sentenced to imprisonment for 6 years with a NPP of 3 years 10 months (6/11/22-5/9/26). A 25 percent discount has been taken into account. I find special circumstances. Disqualified for 3 years – automatic. Catchwords: Crime – Sentence – Aggravated dangerous driving occasioning death Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Whyte (2002) 55 NSWLR 252 Rosenthal v R [2008] NSWCCA 149 Category: Sentence Parties: NSW DPP – Crown Surinder Singh - Offender Representation: Ms J Kelton for Crown Mr W Shukoor for Offender File Number(s): 22/332301 remarks on sentence 1. The offender, Mr Surinder Singh, appears for sentence in relation to an offence under s 52A(2) of the Crimes Act 1900, that being an offence of aggravated dangerous driving occasioning death. The maximum penalty for that offence is 14 years' imprisonment. The maximum penalty is, of course, an important guidepost in the sentencing exercise to which I have had regard. He pleaded guilty at the earliest opportunity and therefore I will allow a 25% discount by reason of the utilitarian value of that plea of guilty. FACTS 1. The facts are agreed and in essence are as follows. The offender is an Indian national living in Australia on a bridging visa. At the time of the collision he had been in Australia for at least 18 months. He lived in rented accommodation in Tighes Hill which he shared with several housemates. The street on which he lived intersected with Maitland Road in that suburb. 2. On Saturday 5 November 2022 the offender was at home with one of his housemates, the deceased, Mr Jujhar Singh, who was not related to the offender. The two of them were drinking a 750 ml bottle of whiskey, which was their habit on a weekend, and by 10 o'clock that night the bottle had been consumed. At about 10pm the offender and the deceased had another housemate drive them to a nearby store to buy a vape because they were too intoxicated to drive. The housemate returned the two men home and then left for work. 3. At some time after about 10.40pm the offender and the deceased left the house again. The offender was driving his car which was a Hyundai sedan. The deceased was in the front passenger seat. At 11.07pm the offender drove into a drive-thru bottle shop on Maitland Road. After purchasing a six-pack of beer the offender drove his car along Maitland Road. 4. The road between the bottle shop and the scene of the subsequent collision comprised four lanes with two lanes in each direction. The premises along that part of the road are mostly commercial and include several pubs, a service station and some fast food outlets. There is foot traffic in the area. It is the main road in that suburb. The road surface was sealed with clear lane markings and otherwise well-lit by streetlights. The centre lines were double white lines. There were several sets of traffic lights along the relevant portion of the road. 5. The length of the drive from the bottle shop to the point of impact was about 1.5 kilometres. The speed posted for the area was 50 kilometres per hour and increased to 60 kilometres per hour shortly before the collision site. The weather was clear and the road was dry. The path of the offender's travel between the bottle shop and the scene of the collision was captured by CCTV and in-car video from various locations. The information from these sources allowed police to calculate the approximate average speed at which the offender was driving at various points. 6. After leaving the bottle shop the offender's car was captured on footage overtaking other cars including on the inside lane and weaving in and out of traffic. Assessments of his approximate average speed included 112 kilometres per hour while the cars around him were travelling at or close to the 50 kilometre per hour speed limit. At another point the offender's car was captured at an approximate average speed of 130 kilometres per hour in a 50 kilometre zone. 7. The offender then drove past a roadside breath test station which was on the opposite of the road and which was being packed up for the night. Police saw the offender driving past at speed and this was captured on their in-car video equipment. At that point the approximate average speed was about 103 kilometres per hour. Shortly after that point the signposted speed increased to 60 kilometres per hour. 8. The speed at which the offender was driving at the time of impact could not be determined with accuracy. However, the point of collision was only 230 metres past where the RBT station was located and the impact occurred about eight seconds after the offender's vehicle passed that point. At a point between the RBT station and the collision site the road has a slight crest where the roadway forms a bridge over a railway corridor and shortly past that point the road veers sharply to the right. 9. The impact took place out the front of the Royal Oak Hotel in Mayfield. At that location there was a large wooden telegraph pole on the corner of the road out the front of the hotel. At 11.11pm the offender's car impacted with this wooden telegraph pole at the front passenger side door. The pole was pushed backwards by the force of the impact. The car's front left fender, the front passenger door and the external shell of the rear passenger door were torn off on impact and the front passenger seat snapped. 10. The force of the impact was such that the front and rear of the car separated into two parts and, clearly, the car was very extensively damaged. The front driver's side, however, was comparatively undamaged. The door was functional and there was little to no intrusion by car parts into the front driver's seating area. The deceased suffered extensive injuries and was ejected from the car and died at the scene. 11. A Mr Minhas was driving in his car a distance in front of and going in the same direction as the offender. He heard a car engine revving from behind him and saw headlights coming towards him and then a loud bang. There was a second bang when the rear portion of the offender's car, which had separated from the front section, impacted the back of Mr Minhas's car. He was not injured, but his car suffered damage including a shattered front passenger window and large dents along the passenger side. 12. The front portion of the offender's car impacted with a parked car and then collided with the wall of the Royal Oak Hotel causing the wall to crack. The offender undid his seatbelt and got out of the car. Civilians who heard the collision came to assist. 13. The offender asked on numerous occasions about the welfare of the deceased. When asked what had happened, the offender said that he had been the passenger and the deceased had been driving. Police from the RBT unit attended the scene shortly after. 14. The offender also told police that he was the passenger and that the deceased had been driving. He maintained that version throughout all discussions with other civilians, police and medical personnel. He also told ambulance officers that he had "begged his friend not to drive due to having a few drinks". Once in the ambulance he asked ambulance officers about the deceased's welfare and was told that he had died. 15. At the hospital he told police, "I told him, 'Don't drive. It's not important enough to leave the house', but he said we needed food." He told hospital staff that the deceased had lost control of the car "'cause he was over speed. I was sitting beside him and I said, 'Please go slow'". At the hospital the offender appeared drowsy with slurred and slow speech, slow breathing and drooping eyelids consistent with the depressant effects of alcohol. 16. The offender suffered a small laceration to his left eyebrow, which required stitches, as well as other lacerations, abrasions and incisional wounds to his face and large swelling to his left cheekbone. He also needed four stitches in total to two lacerations on his left tricep. 17. In addition he had a laceration to the dorsum of the left hand, abrasions to his knees and mild bruising across the pelvis. He was otherwise uninjured and was released to police custody the same day. He was spoken to with the assistance of an interpreter and said, "Me and my friend went and drank at home. Both were drunk, but my friend told me, 'I need to go. I have some work.' I told him, 'No, we are drunk, we can't go'...and he told me to come with him and I went and I was sitting in the passenger seat." 1. He reiterated that the deceased was the driver of the car. 2. Police assessed the scene of the accident and found no evidence of harsh or sudden braking or steering immediately prior to the impact. The area was well lit and the road surface was in a reasonable condition. The manual transmission of the car was found to be in the fifth gear position when examined by police. 3. A blood sample collected from the offender was analysed and it was determined that the blood alcohol content at the time of the collision would have been between about .161 and .179 grams per 100 mls of blood and most likely at a level of about .167. The agreed facts note that at a blood alcohol reading of .161 the offender would have been very substantially impaired in terms of his driving ability. Those are the relevant facts of the offence. OBJECTIVE SERIOUSNESS 1. A fundamentally important part of the sentencing exercise is that I assess the objective seriousness of the offence. Firstly, the offence attracts a potential maximum penalty of 14 years' imprisonment which clearly marks it as a serious type of offence. 2. In assessing the objective seriousness of the offence and in determining the ultimate sentence I have had regard to the guideline judgment in R v Whyte (2002) 55 NSWLR 252 which described the common characteristics of a "typical case" of dangerous driving. 3. That case set out a number of principles, some frequently recurring characteristics, and also provided a numerical guideline. Some of the frequently recurring characteristics are relevant to the objective seriousness of an offence while others involve subjective matters relating to the particular offender and with some of these factors there is a degree of overlap. The decision in Whyte has been considered and further explained in a number of subsequent cases to which I have also had regard. 4. There are a number of aspects of the particular offence before the Court which demonstrate its seriousness. 5. Firstly, the offender, as noted in the agreed facts, was very substantially impaired, with a blood alcohol reading of about .161 at the time of the collision. 6. Secondly, the route taken by the offender immediately before the crash was a relatively busy main road with various premises likely, especially on a Saturday night, to have been attended by members of the public including hotels and food outlets. There was therefore foot traffic in the area as well as other vehicles including the vehicle being driven by Mr Minhas which was hit by part of the offender's car. As a result of all of this a considerable number of people were put at risk by the offender's driving. 7. Thirdly, the manner of driving was aggressive and erratic with the offender weaving in and out of traffic and overtaking on the inside lane. The driving involved very high speeds in excess of 100 kilometres per hour in a 50 kilometre per hour zone and speeds up to 130 kilometres per hour at one stage. Having said that, I do not overlook the fact that the speed limit increased to 60 kilometres an hour shortly before the collision occurred. 8. As I said, there were many people put at risk by the offender's driving. On the other hand, the length of the journey was relatively short although this is not a matter that mitigates the offence to any significant degree given the large number of people who were put at risk during that journey. These matters alone point to the conclusion that this was an objectively very serious form of the offence created by s 52A(2). 9. I make the following comments and findings relating to the offender's moral culpability for the offence: 10. Firstly, I am satisfied that the decision to drive was a relatively spontaneous and unplanned one. 11. Secondly, however, the offender was clearly aware of the fact that he was too drunk to drive. The statement of facts notes that earlier that night the offender and the deceased had another housemate drive them to a shop as they were both too intoxicated to drive. 12. Also, the lies told by the offender after the crash included assertions, although false assertions, that he had told the deceased not to drive as they were both too drunk and that he had told the deceased to "go slow" as he was "over speed". This supports a conclusion that the offender, who was in fact the driver, had actual knowledge that his actions were highly dangerous due both to his own intoxication and the manner of his driving. 13. The offender told the psychologist that he panicked when he saw a police RBT unit by the side of the road, drove past to avoid it, and lost control of the car. This assertion, if true, is, of course, not capable of providing any excuse for the offence even if, as suggested in the psychological report, the offender had a longstanding fear of police. Indeed, driving with the intention of evading police can amount to an aggravating factor in this type of offence. However, the offender's claim that his loss of control of the car was in some way due to panic upon seeing police is not something that I accept. 14. In my view the offence was the product of the offender's heavy intoxication and the speed and manner of his driving. This manner of driving and these speeds and, of course, the intoxication all existed before the offender passed the RBT unit which was on the opposite side of the road and was being packed up for the night. At that point in time the offender's car was travelling slightly slower, but still over 100 kilometres per hour and the impact occurred only about 230 metres past the site of the RBT unit and in an area where the speed limit was 60 kilometres per hour. 15. In conclusion, I do not accept the suggestion that the crash was due to or contributed to by the offender having observed an RBT unit and I put this suggestion aside. As I have said, I am satisfied that the offence was the product of the offender's choice to drive while knowing he was very substantially impaired by alcohol and the manner and speed of his driving, which were products of his disinhibition and impairment by alcohol. 16. In my view the offender's moral culpability for the offence is high and this is a case where, in my view, the offender "abandoned responsibility" for his conduct. As was noted by Hidden J in Rosenthal v R [2008] NSWCCA 149, the notion of "abandonment of responsibility or high moral culpability" in the Whyte guideline is directed to the objective seriousness of the offence. Having regard to the various matters to which I have made reference, I am satisfied that the offence before the Court is a grave example of an offence under s 52A(2). SUBJECTIVE MATTERS 1. The offender's subjective case has been placed before the Court by means of the psychological report of Mr Borenstein as well as a letter from the offender and a number of testimonials from friends. 2. The offender was born in the Punjab region of India and is of Sikh heritage. He described his childhood as satisfactory although he suffered some bullying by an older cousin and while there was some domestic violence by his father towards his mother, the offender did not experience such abuse himself directly. He completed high school and was an average student and the completed a three-year diploma in mechanical engineering. He learnt English in India and had a history of some employment there. 3. He told the psychologist that as a result of being a member of the minority Sikh community, he and his family held fears for their safety including from members of the police force in India. He told the psychologist that he had been told stories in India of people being beaten by police and that as a result he became, and remains, frightened of police. 4. He was selected for entry into the Indian army, but his parents intervened and instead he came to Australia on a tourist visa, arriving here in 2017 when he was aged about 26. Since being in Australia he has largely been employed as a courier or delivery driver. Although the offender described his health as satisfactory, he nonetheless has been diagnosed since coming into custody as suffering hypertension for which he now takes medication. 5. He reported no history of psychiatric illness and the psychologist found no indication of serious psychiatric disorder. However, the psychologist noted that testing indicated the presence in the offender of extremely severe depression and anxiety and severe distress in the wake of the death of his friend in the collision of 5 November 2022. While the psychologist also said that the offender's current symptoms of traumatic stress are in keeping with post-traumatic stress disorder, it was agreed in the sentence hearing that this did not amount to a diagnosis of post-traumatic stress disorder. REMORSE 1. In terms of remorse, the offender has provided a letter to the Court in which he takes responsibility for the offence and says that the decision to drive was the worst decision of his life. He accepts that he will always be responsible for his best friend's death and that he thinks about the deceased's family and the pain he has caused them. He says that when released from gaol he wants to help others by telling them about the dangers of drinking and driving. He said similar things to the psychologist, saying that he feels so guilty and that the deceased was like a brother to him. The offender has also expressed similar remorseful comments to persons who have provided testimonials on his behalf. 2. I need, however, to balance these apparent expressions of remorse against the fact that in the immediate aftermath of the car crash and the death of Jujhar Singh the offender lied to bystanders, ambulance officers and police, by claiming that the deceased was the driver. 3. These lies, of course, do not increase the seriousness of the offending, however, they are relevant to the question of remorse. The offender has said that he told these lies because of fears of what police might do to him, such as assaulting him, and that these fears arose from his experiences in India. I do not, however, accept this explanation. While I accept that the offender likely did have some fear of police, in my view the offender told these lies primarily to avoid responsibility for his offending behaviour and out of fear that he would be prosecuted and sent to gaol for his offence. 4. The fact that the offender told these lies reduces to some degree the level of remorse that I can find in his favour. While I do accept that the offender is now remorseful and is entitled to the benefit of that remorse, a more favourable finding would have been available if the offender had accepted responsibility from the outset. 5. The offender has expressed regret for telling these lies and for having disgraced the deceased's name by blaming him for something he had not done and also for creating additional work for police. Having regard to all of these matters, I accept that there is some genuine remorse in this case. PROSPECTS OF REHABILITATION AND RISK OF RE-OFFENDING 1. Turning then to matters of prospects of rehabilitation and risk of future offending. The psychologist suggests that the chances of the offender committing further offences is extremely low. The offender has no criminal history in this State and, as far as is known, none in India. Having regard to his history and my conclusion that he has shown genuine remorse and learnt an unforgettable lesson from this experience, I am satisfied that he has reasonably good prospects of rehabilitation, and that his risk of reoffending is fairly low. CONSIDERATION 1. As I noted earlier, I have had regard to the guideline decision in R v Whyte. That case set out a number of frequently recurring features, some objective, some subjective, of an offence under the non-aggravated version of s 52A. The decision also suggested that where an offender's moral culpability is high, a full-time custodial term of less than three years for the non-aggravated version of a s 52A offence would not generally be appropriate in a case involving the death of a person. 2. The Whyte decision is a guide or check, and is not prescriptive and is not a starting point. It does not alter the fact that the sentence I impose must take into account all of the objective and subjective factors arising in this particular case, as well as the maximum penalty. 3. I make the following observations in relation to the frequently occurring factors referred to in the Whyte decision: 4. Firstly, the offender was, at age 31, relatively mature and not particularly young. 5. Secondly, he was a person of good character with no prior convictions. 6. Thirdly, the offence involved the death of one person. 7. Fourthly, the victim in this case was not a stranger, but a close friend of the offender. 8. Fifthly, while there was some injury to the offender, it was fairly limited. 9. Sixthly, and as I have already found, there is some genuine remorse in this case. 10. Seventhly, there is a plea of guilty, but it is of limited utilitarian value given that the massive damage to the passenger side of the vehicle showed that the offender's claim that he was the passenger was fairly patently false. 11. The Whyte guideline also set out a number of matters which, where they are present, may aggravate an offence. I make the following observations about those matters, some of which have already been referred to in these remarks: 12. Firstly, and obviously, the extent of injury was extreme, involving death. However, this is an element of the offence and not a matter that aggravates it. 13. Secondly, and as I have already said, there was a large number of others put at risk. 14. Thirdly, there was a high degree of speed. 15. Fourthly, the degree of intoxication was very high. 16. Fifthly, the driving prior to the crash was erratic and aggressive. 17. Sixthly, while the driving was erratic and aggressive, I do not characterise it as having been competitive or showing off; rather, the driving was a product of the offender's loss of inhibition by reason of intoxication. 18. Seventhly, the journey during which numerous others were put at risk was relatively short. 19. Eighthly, the offender did ignore warnings, namely, his own knowledge that he was too drunk to drive and was driving too fast. 20. Ninthly, and as already noted, I do not regard the driving as involving an attempt to escape police pursuit. 21. Tenthly, it was not an offence in which sleep deprivation was apparently a factor. 22. Finally, this is not a case where the offender failed to stop after the crash and there is no suggestion that he tried to escape by running away. 23. As I have said, I have taken into account all of the matters referred to in R v Whyte as well as the other matters to which I earlier referred in determining the appropriate sentence. Where any matter has been referred to more than once, I have, of course, taken care not to double count. 24. I am satisfied that the offender's time in custody has been and will continue to be more difficult by reason of his severe depression, anxiety and stress which I consider are in large part due to his feelings of guilt and sadness associated with the death of the victim who was his close friend. 25. The offender's time in custody is also rendered more difficult by reason of his relative isolation in Australia where he has no family and by reason of his cultural isolation, which includes difficulties in adjusting to a prison diet given that he is a vegetarian. 26. I also take into account, although it is not a matter of great significance, the fact that the offender's time in custody has to some extent coincided with the COVID pandemic and the impacts that that has had on persons in custody at various times. DETERMINATION 1. In determining the appropriate sentence I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 to which I will make some reference. 2. Firstly, the importance of ensuring that adequate punishment is imposed which, of course, is an obvious and fundamental aspect in any sentencing exercise. 3. Secondly, the importance of deterring the offender and others. In this case I am satisfied that general deterrence remains important given the nature of this type of offence and its prevalence. In terms of personal deterrence, in my view that is of less significance in this case, because I am satisfied that the offender has a fairly low chance of reoffending and has learnt an unforgettable lesson. In other words, personal deterrence has largely been achieved already. 4. Thirdly, the importance of protecting the community is clearly an important factor in these types of offences subject to what I said about the offender having been largely rehabilitated, which leads into the next factor which is the importance of promoting rehabilitation. As I have already said, I think the offender is largely already rehabilitated given the lesson he has learnt from this incident. 5. It is also important that the sentence make the offender accountable and in that regard I remain of the view that this is a highly relevant factor, as is the importance of denouncing his conduct and recognising the harm to the victim, the victim's family and the community. 6. Of course, the life of the deceased, Mr Sing, cannot be measured against the sentence that I will impose, and that sentence cannot mitigate to any real degree the tragic consequences for the deceased person's family and friends. 7. I am satisfied for the purposes of s 5 of the Crimes (Sentencing Procedure) Act that no penalty other than full time imprisonment is appropriate. 8. I have made a finding of special circumstances to vary, to some degree, the standard ratio between head sentence and non-parole period. I have made that finding based upon this being the offender's first period in custody and also the matters to which I have referred which will, and do, impact upon his experience in custody, namely, his mental state and his relative isolation. 9. I impose a head sentence of six years' imprisonment. That is, of course, after the 25% for reasons of the utilitarian value of the plea of guilty. I impose a non-parole period of three years, ten months. Each of those will date from the day of arrest which was 6 November 2022. The head sentence therefore will expire on 5 November 2028. The non-parole period will expire on 5 September 2026. 10. I impose the automatic period of disqualification, that is, one of three years. 11. The Court also extends its condolences to the family and friends of Mr Jujhar Singh. Ms Crown, Mr Hanna, anything to raise in relation to any of those matters? 12. ATKINSON: No, your Honour. 13. HANNA: No, your Honour, those numbers appear correct, thank you. 14. HIS HONOUR: All right, thank you, the Court will adjourn. ********** Amendments 05 July 2024 - Typo in appearances DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2024