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MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Hingu (No 2) |
Citation: | [2024] ACTMC 18 |
Hearing Dates: | 9 August 2024 and 27 August 2024 |
Decision Date: | 27 August 2024 |
Before: | Magistrate Temby |
Decision: | See paragraph [41] |
Catchwords: | SENTENCING – Aggravated furious, reckless, dangerous driving – Putting vulnerable road user at risk |
Legislation Cited: | Crimes (Sentencing) Act 2005, s10(2) Road Transport (General) Act 1999, s63(4) |
Cases Cited: | DPP v Clarke (No 2) [2023] ACTSC 261 DPP v XK [2023] ACTSC 141 R v Lyons (No 1) [2020] ACTSC 358 R v Collins [2019] ACTSC 302 R v Williams [2017] ACTSC 298 Markarian v R [2005] HCA 25 |
Parties: | Jeffery Evan Thomas Jervis (Informant) Krishna Hingu ( Defendant) |
Representation: | Solicitors ACT Director of Public Prosecutions R & J Lawyers ( Defendant) |
File Numbers: | CC 3089 of 2024 |
MAGISTRATE TEMBY:
Charges
1․ The Defendant appeared before me on 9 August 2024 and 27 August 2024 to be sentenced in relation to an offence of driving recklessly, and in a way that was dangerous to the public, aggravated by having put the safety of a vulnerable road user at risk. I found the Defendant guilty of this offence following a contested trial.
2․ The maximum penalty for this offence is two years’ imprisonment and/or 200 penalty units ($32,000).
Nature and circumstances of offending
3․ My decision of 29 July 2024 sets out the circumstances of the Defendant’s offending.
4․ In summary:
(a) on 29 December 2023, at approximately 7.00 am, the Defendant was driving a car;
(b) the Defendant exited the driveway of her residence on Noongale Street, Ngunnawal, and proceeded towards the intersection of Noongale Street and Paul Coe Crescent;
(c) the Defendant turned right onto Paul Coe Crescent and continued for about twenty metres, where she then crossed the lane of oncoming traffic and mounted the curb on the opposite side of the road;
(d) the Defendant was distracted while she was driving and was not looking where she was going – she must have realised that doing so risked substantial harm to another person using the road, yet she continued to drive in that fashion until she drove into a bus stop and collided with a pedestrian, Ms Ko;
(e) Ms Ko was thrown into the air as a result of connecting with the front right side of the bonnet of the Defendant’s car. Ms Ko’s left elbow struck the right side of the car’s windscreen with sufficient force for the windscreen to break;
(f) Ms Ko landed on her back, hitting her head on the ground and was left dazed and confused, sitting on the ground next to the bus stop;
(g) Ms Ko felt dizziness and pain and could not move;
(h) as a result of the Defendant’s car colliding with Ms Ko, she sustained an impact injury including glass shards embedded in her left elbow and bruising on her left hip, buttocks and torso;
(i) Ms Ko was conveyed to hospital where she received treatment for her injuries.
Objective seriousness
5․ The particular factors which the courts have found to be relevant to assessing the objective seriousness of the offence of reckless or dangerous driving were summarised by Taylor J in DPP v Clarke (No 2) [2023] ACTSC 261 at [38].
6․ The fact that the Defendant drove on the wrong side of the road and mounted a footpath aggravates the seriousness of the offending conduct because the nature of the driving as dangerous was multifaceted.
7․ The public, in terms of oncoming traffic, was put at risk by the Defendant driving on the wrong side of the road, albeit that the evidence is that there was only one vehicle which had to stop, being a public bus. There is no evidence as to how many passengers it was conveying.
8․ Ms Ko, a pedestrian (and, therefore, statutorily defined as a vulnerable road user), was put at risk. She was not physically vulnerable, although, because she was not looking in the Defendant’s direction, she had no capacity to protect herself.
9․ Not only was she put at risk, she was in fact struck by the Defendant’s car. That is an aggravating factor of some significance.
10․ The fact that Ms Ko suffered injury also increases the objective seriousness of the offending, although the extent of that injury is not to be taken into account in sentencing the Defendant for this offence: DPP v XK [2023] ACTSC 141 at [41].
11․ The other circumstances of the offending are not aggravating:
(a) the driving occurred in a quiet residential setting, rather than a busy commercial one;
(b) the time of day when the Defendant was driving, 7.00 a.m., was a time when there were not many other road users around;
(c) there were no passengers in the Defendant’s car;
(d) the distance driven dangerously was relatively short (at least 20 metres but possibly not much further than that);
(e) the car was driven within the speed limit;
(f) the Defendant was not affected by drugs or alcohol; and
(g) the Defendant did not deliberately drive dangerously.
12․ Overall, I assess the objective seriousness as approaching the mid-range of the spectrum.
Subjective circumstances
13․ The Defendant was born in India and moved to Australia in 2018 to commence a Masters of Information Technology, having already obtained a Bachelor of Engineering in India. She is currently residing in Australia on a Skilled Work Regional (Provisional) visa, which she understands to be a pathway to a permanent residence visa.
14․ She has been working as a software developer for four years. She reported to the authors of a Court Duty Report that she did not have significant savings, but nor does she have any debt. She was assessed as suitable for sentence to a monetary penalty.
15․ The Defendant became pregnant in around early March 2024, however she suffered a miscarriage in late April or early May 2024. She and her husband attribute the miscarriage to the stress of the court proceedings, however that is not established.
16․ The two things that the Defendant is most concerned about are the prospect of her employment being terminated and the consequences of a conviction with respect to any future application for a permanent Australian visa. However, as I said when dealing with the Defendant’s application for a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (the Sentencing Act), these are mere possibilities.
17․ The Defendant’s employment may be terminated if, relevantly, she is ‘convicted of any criminal offence other than an offence which in the reasonable opinion of [her employer] does not affect [her] position as an employee or [her] ability to perform [her] duties’. It is doubtful that the Defendant’s employer would reasonably conclude that a conviction for a driving offence, even if a serious one, would affect her position as an employee or her ability to perform her duties as a software developer.
18․ Further, even if her employer took that view, it would not automatically lead to the Defendant’s employment being terminated. The company retains a discretion. As noted below, the Defendant’s character references speak of a diligent and hardworking employee who goes out of her way to assist her teammates.
19․ Insofar as the impact of a conviction on the Defendant’s prospects of obtaining a permanent visa are concerned, again, this is a matter of mere conjecture. I accept that a criminal conviction, and the accompanying sentence, would be taken into account in assessing the Defendant’s application, but I do not know what the impact of an isolated offence of the present kind will be. It is not a case where the Defendant will be liable to the cancellation of her visa on character grounds because she will not receive a sentence of imprisonment of 12 months or more.
Remorse and contrition
20․ The Defendant points to the fact that she stopped her vehicle after she hit Ms Ko and walked back to check on her welfare as demonstrating her remorse. She notes that the bus driver observed that she was shaken as a result of the incident.
21․ She also provided a written statement in which she explained how the incident had troubled her and in which she expressed an apology to Ms Ko and stated that she understood the pain and suffering she experienced. She stated that she took full responsibility for her actions, and the consequences of them, and understood that the safety and well-being of others should always be a priority when she is driving. Similarly, she demonstrated empathy to the authors of the Court Duty Report.
22․ I accept that the Defendant is genuinely remorseful and the need for specific deterrence is accordingly reduced.
References
23․ The Defendant tendered a number of references.
24․ The reference from the Defendant’s husband, Mr Hingu, speaks to the concern the Defendant expressed to him with respect to the welfare of Ms Ko and her guilt in relation to the incident. He describes the Defendant as very professional and punctual and as being someone who always shows her dedication and determination towards her work, and who goes out of her way to help her teammates.
25․ Mr Hingu says that the Defendant has contributed to community events both in India and Australia. Of most relevance, he describes the Defendant as a very good driver and says that the incident is completely out of character. He says that the Defendant has paid more attention to her driving since the incident. I accept that that is true.
26․ References prepared by Mr Kumar (High Commission of India) and Mr Patel (High Commission of India and friend) and Mrs Patel (friend) are to similar effect.
Criminal history
27․ The Defendant has no criminal history. Relatedly, I note that the Defendant otherwise has a clean driving record, with no traffic infringements.
28․ The absence of prior criminal convictions is a mitigating factor on sentence. It entitles the Defendant to leniency. It also indicates that the likelihood of the Defendant re-offending is low.
29․ She was also assessed by the authors of the Court Duty Report as being a low risk of general reoffending. Her protective factors include a supportive family, stable accommodation and employment, and no identified drug or alcohol issues or any significant health issues.
Comparable cases
30․ Considering past sentences is relevant to the achievement of reasonable consistency in sentencing. In that respect, I sought to identify comparable cases in which defendants have been sentenced for the offence of driving dangerously or recklessly. I considered, for example, R v Lyons (No 1) [2020] ACTSC 358, DPP v XK [2023] ACTSC 141, R v Collins [2019] ACTSC 302 and R v Williams [2017] ACTSC 298.
31․ However, the circumstances of the offending involved in those cases were dissimilar to the circumstances of the Defendant’s offending and there was a range of maximum penalties for the offences involved in those cases. They are of limited assistance to me in determining an appropriate sentence in this matter.
Purposes of sentencing
32․ Ultimately, I must ensure that the Defendant is adequately punished in a way that is just and appropriate. In doing so, I must give careful attention to the maximum penalty for the offence: Markarian v R [2005] HCA 25
33․ While this is the Defendant’s first offence, and while I accept that she is remorseful, there is still a need for specific deterrence to ensure that the Defendant receives the message that she cannot drive while distracted again. As I noted in my earlier decision, it is fortunate that Ms Ko’s injuries were not more serious than they were.
34․ There is also a need to recognise the harm suffered by Ms Ko. She suffered injury and, as the Prosecution submitted, would no doubt have suffered pain and a degree of trepidation in getting around as a pedestrian following the incident. She would also have needed to take time off work.
35․ To some extent, the offending conduct calls for denunciation. The need for general deterrence is also significant. It must be made clear to all drivers that driving without looking where they are going is dangerous and risks the safety of other road users. If drivers do not observe the high standard of vigilance and care that is expected of them, they should expect to receive an appropriately harsh punishment.
Decision
36․ Pursuant to s 10(2) of the Sentencing Act, the court may only sentence the Defendant to imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
37․ Having considered all the sentencing options, I am satisfied there is no appropriate alternative to imprisonment with respect to the charged offence. The Defendant’s dangerous and reckless driving resulted in her hitting a pedestrian, who suffered injury as a result. In my view, nothing short of a sentence of imprisonment will achieve the purposes of sentencing I have identified, particularly the need for general deterrence.
38․ Having regard to all of the matters that I have discussed, I have determined that the appropriate punishment in this case is 4 months’ imprisonment, which will be suspended immediately on the Defendant entering into a Good Behaviour Order for a period of 18 months.
39․ In addition, I will impose a fine of $3,000 with six months to pay.
Consequences of conviction
40․ As a consequence of the Defendant’s conviction for the charged offence, the Defendant is automatically disqualified from holding or obtaining a driver licence for 12 months: s 63(4), Road Transport (General) Act 1999.
Orders
41․ Accordingly, I make the following orders:
(a) I record a conviction in relation to the offence of driving recklessly, and in a way that was dangerous to the public, aggravated by having put the safety of a vulnerable road user at risk.
(b) The Defendant is sentenced to a period of imprisonment of 4 months.
(c) That sentence is to be suspended on the Defendant entering into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 18 months.
(d) The Defendant is to pay a fine of $3,000, such sum to be paid within 6 months.
I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Date: 27 August 2024 |