DPP v Guha [2022] VCC 1074 (11 July 2022)

Last Updated: 27 July 2022

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 21-022194

DIRECTOR OF PUBLIC PROSECUTIONS
v
HITESH GUHA

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2022
DATE OF SENTENCE:	11 July 2022
CASE MAY BE CITED AS:	DPP v Guha
MEDIUM NEUTRAL CITATION:	[2022] VCC 1074

REASONS FOR SENTENCE
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Subject: Intentionally causing injury. 4 summary offences.
Sentence: 6 months immediate imprisonment 18 months community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy
For the Accused	Ms A. Buckley

HIS HONOUR:

1. Hitesh Guha, you he'd pleaded guilty to one charge of intentionally causing injury. This charge carries a maximum penalty of imprisonment for 10 years.
2. You also pleaded guilty to four related summary offences and through your legal advisers you agreed to having those related summary charges dealt with by me in this court:

Summary Charge 5 is a charge of being the driver of a motor vehicle, you failed to stop and render assistance after an accident where someone was injured. The maximum penalty for this offence is imprisonment for eight months;

Summary Charge 7 is a charge of dangerous driving. The maximum penalty for this offence is imprisonment for two years. In addition, upon conviction for this offence a court must cancel an offender's licence to drive a motor vehicle for at least six months;

Summary Charge 8 is a charge of unlicensed driving. The maximum penalty for this offence is a fine of 60 penalty units;

and Summary Charge 13 is a charge of breaching a conduct condition of bail, for which the maximum penalty is imprisonment for three months.

3. As you can see from the maximum penalties for the offences you have committed, the parliament of this State regards this kind of offending very seriously.
4. Your offending occurred on 15 March 2020 in Shepparton. At that time you were 34 years of age. You are now 36. I heard your plea in mitigation on circuit in Shepparton on 22 June 2022 after which I extended your bail until today and I arranged to have you assessed as to suitability for the making a community corrections order. You have now been assessed as suitable for such a disposition and you have been assessed as being medium risk of reoffending. For the reasons that follow I will be imposing a term of imprisonment upon you in combination with a community corrections order. In my judgment, having regard to the seriousness of your offending, a community corrections order with conditions by itself would not achieve all of the purposes of sentencing in this case, especially general and specific deterrence and denunciation.
5. The circumstances of your offending are contained in a summary of prosecution opening in writing. That document was read to the court by the learned prosecutor, Mr D'Arcy, and your counsel, Ms Buckley, accepted that the prosecution opening is accurate and forms a proper factual basis upon which I can proceed to pass sentence. In those circumstances it is not necessary that I here again set out in full that which is contained in the prosecution summary, and I will do so only in an abbreviated way.
6. These sentencing remarks should, however, be read in conjunction with what is set out in the amended prosecution summary, which was tendered in evidence and marked as Exhibit A.
7. On 14 March 2020 you finished your shift as a chef at the Terminus Hotel in Shepparton at 10 pm. You stayed at the hotel, having drinks in the bar area with friends. You left the hotel with friends and then continued drinking at Club Rawhide, a strip club also in Shepparton. You and your friends left the club in your car with you driving. You were unlicensed at the time, your licence having expired on 18 July 2019, Summary Charge 8, unlicensed driving.
8. You drove west along Fryers Street and attempted to turn left into Wyndham Street. These streets are main streets in the central business district of Shepparton. CCTV footage showed your car was travelling quickly as it approached the intersection and came to a stop near pedestrians, who were crossing Wyndham Street from east to west. Both you and the pedestrians had the benefit of a green light.
9. The victim in the indictable charge was Noah Calendro. He was one of the pedestrians and he was in the company of four friends. As the pedestrians crossed from the east side of Wyndham Street to the west side, one of the group said to you, 'Piss off, mate. It's a green light. Let us walk'. That should not have been said. It was probably a reaction to the way you approached the intersection.
10. Instead of just driving away you stopped your car in the middle of the left lane, a few metres south of the intersection. A verbal argument continued before you drove your car a further 20 metres south into a parallel parking bay behind a food van. You parked there for about two minutes as a verbal exchange continued. One of the group of pedestrians approached your car. You attempted to exit while wanting to fight but you were prevented from doing so. The victim slapped your face through the car window before he was pulled away by a friend. The victim and his friend turned around and began walking west, away from your car, towards the western side of Wyndham Street.
11. You then reversed your car about 3 metres. You then accelerated forward and quickly. You performed a U-turn from the parking bay on the east side of Wyndham Street. You drove across continuous double lines and five traffic lanes, two north and two south and a north-bound turning lane. As you did so you accelerated quickly, causing the wheels of your vehicle to spin and screech. You were seen to straighten the wheels of your car so that you drove straight at the victim as he attempted to walk away. Your car was approximately at a 45 degree angle when it struck the victim in the western most north bound lane of Wyndham Street. The impact caused the victim to be ejected through the air approximately 5 to 6 metres. He came to rest on the footpath on the western side of Wyndham Street. Charge 1, intentionally causing injury and related Summary Offence 7, dangerous driving.
12. There was obviously the prospect that the victim had been injured but you did not stop. Instead you continued to accelerate through the intersection. You drove through a red light and made a right-hand turn into Fryers Street from the left, western side of Wyndham Street. Related Summary Charge 8, failing to stop and render assistance.
13. The prosecution summary attaches a properly drawn sketch of the intersection. It is a well-known intersection in Shepparton, located one block from the courthouse. The victim was injured. He was taken to Goulburn Valley Hospital where the examination showed he suffered left scalp haematoma, left frontal bone fracture, left frontal subdural haematoma or bleeding on the brain, retrograde amnesia, bruising to the right and left elbows, swelling over the right, outer ankle, minor abrasions to the left, lower chest. He was admitted to hospital for observation and discharged at 7.30 pm the following evening.
14. Fortunately for the victim and fortunately for you, he was not more seriously injured as a result of your deliberate use of a motor vehicle as a weapon. I admitted into evidence as Exhibit B a victim impact statement in which the victim recites just how his life has been affected by your crime. The effects upon him continue and may be expected to be long lasting. In passing sentence I have taken the contents of the victim impact statement into account, as I must.
15. You were interviewed by police eight days later on 23 March 2020. You denied that you purposely drove into the victim. Notwithstanding your guilty plea in this court to the charge of intentionally causing injury, I note that when interviewed for the making of a community corrections order you again denied deliberately straightening the wheels of your vehicle to collide with the victim. You also denied to Laura Fleming, the psychologist, from whom I received a report, Exhibit 2, on your behalf, any deliberate decision to harm the victim, and you told her you were unaware he had been injured at the time.
16. You were charged and admitted to bail on 23 March 2020. One of the conditions of bail was that you not contact prosecution witnesses. Notwithstanding that condition, you approached a work colleague who had given a statement to police. You accused him of having given a statement to police and of having gotten you into trouble. You asked him to call you. Summary Charge 14, breach of a conduct condition of bail.
17. This is clearly serious offending. It happened in the heart or the Shepparton CBD. You overreacted to a road incident and drove your car in a dangerous manner and violent manner, deliberately using it as a weapon to strike and injure the victim. You may have been somewhat provoked by behaviour of the group of pedestrians, but instead of just driving off when they had clearly withdrawn, you overreacted in a violent and aggressive way that was totally unnecessary. You used your car to drive dangerously at speed and deliberately struck the victim. You then callously decamped. Your offending was clearly a species of road rage, conduct that is unfortunately becoming all too common in our community. That is why general deterrence is such a relevant sentencing principle in the sentencing of you.
18. As to the circumstances of offending, your counsel, whilst accepting it was serious, pointed to the fact that it was of short duration. This kind of offending is almost always of short duration. Your offending was short and it was violent. Your counsel pointed to the fact it was provoked. I accept that it was but you completely overreacted. Your counsel submitted your offending occurred at a time when you suffered stress and depression. They submitted that having regard to Ms Fleming's opinion that, 'It is considered that
    Mr Guha's reactivity and externalisation has been due to lowered mood and a reaction to psychosocial stress', at paragraph 82, supports a finding that the first limb of Verdins is enlivened in the sentencing process. I do not accept that your mental health was causative of this offending. I do, however, have regard to your mental health in framing the sentence I will soon pass.
19. On the night of this offending you worked as a chef at the Terminus Hotel before later drinking there and then later drinking with friends at a strip club. There is no evidence you were depressed or exhibited depressed conduct on the night of the offending. There is no evidence of how much you had to drink on the night but you had been out with friends, drinking, for more than four hours before this offending. In sentencing for crimes of this kind the court must have full regard to deterrence, both general and specific, denunciation, protection of the public, just punishment, and your prospects for rehabilitation. For reasons that I will shortly come to, I regard your prospects for rehabilitation as being guarded.
20. You have admitted prior convictions from two previous court appearances in the Shepparton Magistrates Court. In 2016 you appeared charged with assault. Without conviction you were ordered to pay $400 into the court fund. In 2017 you were again charged with assault. You were convicted and fined $1500. It would appear from those dispositions that the circumstances of that prior offending were relatively minor but they show that you have a propensity for violence.
21. Importantly, you have pleaded guilty to the charge in the indictment and the related summary charges, and that is to your credit. After numerous committal mentions the charges resolved into a plea at committal on
    27 October 2021 and proceeded to this court by way of a hand-up brief. Although you did not indicate an intention to plead guilty at the earliest possible opportunity, I never-the-less treat you for sentencing purposes as having pleaded guilty at an early time. For that you are entitled to receive, and will receive, a reduction in sentence which I will refer to when I pass sentence shortly.
22. By your pleas of guilty you have saved the time and cost of a trial. By your pleas of guilty you have taken responsibility for your crimes and you have advanced the administration of justice. I accept there has been some delay in disposing of this matter and that you have had these matters hanging over your head for some time without the benefit of finality. Further, your pleas of guilty come at a time where the courts have a considerable backlog caused by the COVID-19 pandemic. The disposition of these charges has been somewhat fragmented because of this backlog and the consequences of the COVID-19 pandemic. By pleaded guilty you have not added to that backlog and you are entitled to receive a noticeable reduction in sentence for having pleaded guilty to the charges in the midst of the COVID-19 pandemic. Because you will be sent to prison at a time when the functioning of prisons is affected by the COVID-19 pandemic, I acknowledge that your time in prison will be more burdensome than it otherwise would be. You will likely spend
    14 days isolated in quarantine and your prison visitations will be limited, if not completely curtailed, and you will likely have restricted access to programs that might assist your rehabilitation.
23. I cannot find any evidence of your genuine remorse. You have pleaded guilty and as I say, that is to your credit but nowhere have I seen genuine empathy for the harm that your conduct has caused the victim. Your continual denial of having acted deliberately in spite of strong evidence to the contrary, including your guilty plea, is a concern to me.
24. The report of psychologist, Laura Fleming, which I have referred to above, traces the history of many aspects of your life. There can be no doubt that your life in some ways has been beset with difficulty, but what comes through is that you almost always tend to blame others for your problems, never yourself.
    Ms Fleming assessed you as medium risk of reoffending. I accept that to be the position. I regard your prospects for rehabilitation as guarded. I cannot say it is unlikely that you will reoffend in this way.
25. I received written submissions from your legal advisers prepared by other counsel, Mr Murphy, but which were adopted and spoken to by Ms Buckley, Exhibit 1. Your counsel both recognise that this kind of offending would normally attract an immediate term of imprisonment. However, they submitted that the value of your guilty pleas, together with your mental health issues and the consequences for your immigration status and the impact of imprisonment upon your young family, should, in combination, lead me to impose a non-custodial sentence. Alternatively, they argued I should impose a short term of imprisonment in combination with a community corrections order. As I have already indicated, this is the kind of disposition I will impose.
26. You were born in Bhilai in eastern central India to good parents with whom you continued to enjoy a good relationship. You were an only child. You commenced schooling in a private school but completed your schooling in a public high school. After leaving school you worked in real estate before studying information technology in India. You married around this time. In 2008 you came to Australia to continue your study, but in commercial cookery. After arriving you were kicked out of a share house by your housemates and slept rough in Melbourne CBD for a time. You then travelled to Griffith in New South Wales, looking for work and your wife came from India to join you. Within a few years your marriage broke up. You divorced in 2013.
27. You relocated to Shepparton after having met your current partner, Casey Norris, with whom you now share a child born in February of this year. I received into evidence a letter from her, Exhibit 6. She remains very supportive of you and I accept your incarceration will be difficult for her.
28. You have a good work record, having worked in a number of chef positions in the hospitality sector in and around Shepparton. However, like many others in the hospitality sector, from late 2019 you found yourself often without work due to the COVID-19 pandemic. Since being charged you have only been able to work as a chef on and off because of a skin ailment contracted through your work and because of the ongoing effects of the pandemic. In recent times you have been working as a driver.
29. In around 2012 your mental health is said to have declined. This coincided with the breakdown of your marriage. You attended upon your GP, who referred you to a psychologist but you did not follow through with the referral. A suicide attempt was thwarted by the intervention of a neighbour. Between 2012 and 2020 you had some sessions with a counsellor and a psychologist and you were prescribed medication for depression at various times. A diagnosis of depression and anxiety was made by your GP in 2017. In February 2020 you presented to your general practitioner at the Shepparton Medical Centre, who noted you presented with severe depression and suicidal thoughts in a context of low mood and anxiety related to loss of employment.
30. You told your general practitioner that you had turned to alcohol and illicit drug use, including cocaine. There is no evidence you are or were addicted to either drugs or alcohol. There was another suicidal attempt by driving off the road. You were admitted to the Goulburn Valley Hospital overnight. I accept that in the period leading up to this offending you had been diagnosed as showing depressive symptoms and have been experiencing low mood, suicidal ideation and anxiety. Ms Fleming has opined you suffer from a major depressive disorder, likely operative at the time of offending, but that had not stopped you drinking with your friends at the Terminus Hotel and at the strip club immediately before this offending.
31. I was told and accept that your future plans are to care and support for your family and to study with a view to again working in real estate. In addressing your prospects for rehabilitation your counsel's submissions suggested that because for two years you had complied with bail conditions, that demonstrates responsiveness to court interventions. Whilst I accept you have generally complied with bail conditions for more than two years, you did breach an important and fundamental condition of bail within days of having been admitted to bail. At the time you clearly were not prepared to accept responsibility for what you had done.
32. I accept you are not addicted to drugs or alcohol but on self-report to your GP you have turned to both in the past. That must be weighed into the mix and steps taken to ensure you do not go down that path again. You had been drinking at the time of this offending.
33. You are not a citizen of this country and you reside here on a temporary visa. You have had your visa cancelled in the past for less serious offending. I acknowledge that it is likely that upon conviction for this offending your temporary visa may be cancelled and I accept that is an overwhelming burden that will weigh heavily upon you whilst in prison, especially because it is unrealistic to expect that your partner and child will go to live in India.
34. In sentencing I am most cognisant of these issues and the implications that may unfold for you. I am especially alert to the question of whether s501(3)(a) if the Migration Act of the Commonwealth is enlivened. Whilst I accept that your imprisonment will cause some hardship to your partner and child, I am not satisfied that hardship justifies a finding by me of exceptional circumstances. You are presently unemployed and financially the position will not change because of your imprisonment. I accept you will be separated from the family for a relatively short time but this is not exceptional.
35. Your counsel submitted that all limbs of Verdins' principles have application here. As I said earlier, I reject the submission that there is a nexus between any mental illness from which you may be suffering and this offending. I have moderated reliance on general deterrence and taken your psychological state into account in arriving at the kind of sentence I will impose.
36. On the charge in the indictment, Charge 1, intentionally causing injury, you are convicted and sentenced to a term of imprisonment of six months. In addition, on the charge in the indictment, intentionally causing injury, I make a community corrections order with conviction for a period of 18 months to commence from when you are released from prison on the following conditions:

that you undergo supervision by Corrections;

that you undergo treatment and programs for drugs;

that you undergo treatment and programs for alcohol;

that you undergo treatment and programs for your mental health;

and that you undergo treatment and programs to reduce reoffending.

37. The offence in Charge 1 is a, 'serious motor vehicle offence', within s87P(f)(ii) of the Sentencing Act 1991. Pursuant to s89(2)(c) of that Act, any licence you hold to drive a motor vehicle is cancelled and you are disqualified from holding a driving licence for the statutory minimum period of 12 months.
38. On Summary Charge 5, failing to stop and render assistance after an accident, you are convicted and sentenced to a term of imprisonment of one month.
39. On Summary Charge 6, dangerous driving, you are convicted and sentenced to a term of imprisonment of three months.
40. Any licence you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence for six months.
41. On Summary Charge 8, driving without a licence, you are convicted and discharged.
42. On Summary Charge 13, failing to comply with a conduct condition of bail, you are convicted and sentenced to a term of imprisonment of one month.
43. This makes a total effective sentence of imprisonment of six months. There is no pre-sentence detention.
44. For the purposes of s6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty to the charges I would have sentenced you to a term of imprisonment of three years and I would have fixed a minimum term of two years' imprisonment before being eligible for parole.
45. Mr Guha, what all of that means is that you have been sentenced to a term of imprisonment in total of six months, commencing today, and you will start to serve that sentence today and at the end of the six months you will commence on a Community Corrections order. Do you understand that?
46. I can only make the community corrections order if you consent to it. Do you consent to that order?
47. OFFENDER: Yes, sir.
48. HIS HONOUR: I am sorry, I cannot hear you.
49. UNIDENTIFIED SPEAKER: He needs to speak for him.
50. HIS HONOUR: Can you speak up?
51. OFFENDER: Yes, I do.
52. HIS HONOUR: Very well. Have the papers been sent to - - -
53. ASSOCIATE: Yes, Your Honour.
54. HIS HONOUR: The papers - there's some paper - a paper for you to sign.
    Ms Buckley, my associate has sent the community corrections order to Shepparton. If you could have your client sign it, please?
55. MS BUCKLEY: Thank you, Your Honour. Yes, I have a copy of that.
56. HIS HONOUR: Could you get Mr Guha to sign it, please?
57. MS BUCKLEY: Yes.
58. HIS HONOUR: Explain it to him and get him to sign it.
59. MS BUCKLEY: Yes.
60. HIS HONOUR: Ms Buckley, my associate has just pointed out to me that on that document that your client has just signed it does not refer to the fact that the community corrections order is to commence upon release from prison. She is just redoing the community corrections order.
61. MS BUCKLEY: Amending it, thank you, Your Honour.
62. HIS HONOUR: And we will send it up there. I am sorry about that. Ms Buckley, that has meant also that I have had to redo the gaol orders. So they have been signed, they are being scanned and they will be sent up to you immediately. Do you understand?
63. MS BUCKLEY: Thank you.
64. HIS HONOUR: And after they are all signed if the police officers could take Mr Guha into custody.
65. MS BUCKLEY: Thank you.
66. HIS HONOUR: Mr Guha, I just want you to understand that when you commence the community corrections order you have to comply with it in every way. You understand? And if you do not you can be brought back and I may have to re-sentence you. So please comply with the conditions of the community corrections order after your release from prison and just complete the order satisfactorily and that will be the end of the matter. Very well. I will just stand down whilst you attend to that.

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