Bankal v The Queen [2019] VSCA 171

1 At about 7.20 pm on 7 July 2017, the applicant, then aged 28[1] - who had never held a driver's licence - drove an unregistered Holden Commodore from a service road adjacent to a Dan Murphy's liquor store car park onto the south-bound lanes of the Nepean Highway. Very shortly afterwards, an unregistered motorcycle ridden by Ashleigh Gason, aged 21[2] - whose licence was suspended due to the accumulation of demerit points - struck the applicant's vehicle. Police determined that, prior to impact, the motorcycle was travelling at a minimum speed of 112 kph (the applicable speed limit being 80 kph).

2 As a result of the collision, both the motorcycle and its rider, Mr Gason, caught fire (Mr Gason suffering injuries from which he died). Although others at the scene rendered assistance to Mr Gason by extinguishing the fire and performing CPR, the applicant did not. Within a minute or a minute and a half or so, he had left the scene.

3 The applicant was arrested on 8 July 2017. Almost a year later, on 27 June 2018, the applicant pleaded guilty before a judge in the County Court to an indictment that charged him with failing to render assistance after a motor vehicle accident in which a person is killed,[3] and to related summary charges of driving whilst disqualified[4] and using an unregistered vehicle on a highway.[5]

4 On 7 August 2018, the judge sentenced the applicant to three years and three months' imprisonment on the indictable charge of failing to render assistance; to three months' imprisonment on the charge of driving whilst disqualified (one month of that sentence to be served cumulatively on the sentence on the indictable charge); and to a fine of $200 on the charge of using an unregistered motor vehicle.[6] The total effective sentence of imprisonment was thus three years and four months, upon which the judge fixed a non-parole period of 22 months.[7]

5 The applicant now seeks leave to appeal against sentence on two grounds as follows:

1. The learned sentencing judge erred by failing to take into account:

(a) that others in the vicinity of the collision were able to provide immediate assistance to the victim; and

(b) that in the circumstances, the applicant's failure to render assistance had no deleterious effect upon the victim.

1. The sentence imposed on charge 1, the total effective sentence and the non-parole period are manifestly excessive.

6 In our view, neither ground can be upheld. Leave to appeal should be refused.

7 Before turning to consider the grounds of appeal, it is necessary to say a little more of the circumstances of the applicant's offending and subsequent arrest.

8 CCTV footage showed that the applicant and his then partner, Chantelle Hastings, drove into the Dan Murphy's store situated on the Nepean Highway, Brighton East, at 7.33 pm on 7 July 2017. The applicant parked the car, and both entered the store. Having purchased two bottles of brandy, they returned to the car, which was a white 1993 Holden Commodore sedan. The applicant got into the driver's seat and Ms Hastings into the front passenger seat. Ms Hastings' black dog was also in the car.

9 At 7.55 pm, the applicant drove out of the Dan Murphy's car park onto a service road that runs beside the south-bound lanes of Nepean Highway, coming to a stop at the entry point onto Nepean Highway (which is just south of the premises of Rec Xpress 24/7 Fitness, 497 Nepean Highway, Brighton East). The applicant remained stationary in that position for 47 seconds - apparently waiting for a break in traffic - before moving onto Nepean Highway. At that point, the motorcycle ridden by Mr Gason collided with the rear driver's side of the applicant's vehicle, around the boot area. Both the motorcycle and the car exploded into flames, the motorcycle and Mr Gason - himself engulfed in flames - being thrown forward from the point of impact. As a result of the impact, the applicant's vehicle rotated 180 degrees, to point north in the south-bound lanes. At the point of impact with the car, the motorcycle was travelling at a minimum of 112 kph and was in the process of braking.

10 According to Ms Hastings, as she sat in the car in shock she noticed that the car was on fire. The applicant then opened the rear driver's side door and retrieved her dog. (CCTV footage about 22 seconds after the collision showed Ms Hastings' dog running around on the road near the collision scene.) Ms Hastings opened her door and could see a motor bike lying on the road. She returned to her car a couple of times to retrieve her belongings. A witness at the scene, Seung Hong, noticed the applicant get out of the burning car and run around it a couple of times, with his hands on his head.

11 As Ms Hastings searched for her dog, a woman at the scene said the motorcyclist was dead. Ms Hastings told police that the applicant said to her: 'Let's just go home and we will sort out what we are going to do when we get home'.

12 About 58 seconds after the collision, the applicant walked from the collision scene across the median strip towards the western side of Nepean Highway, followed by Ms Hastings. He then turned and walked back to the collision scene for a few seconds, before following Ms Hastings across the road.

13 At the scene, two men used their jackets to smother the flames on Mr Gason, and two off-duty doctors tried to no avail to revive him.

14 The applicant and Ms Hastings walked to Ferguson Street, Brighton, flagging down a taxi at 8.06 pm. They were then driven to Glen Huntly Road, Elwood, where Ms Hastings' apartment was located. Ms Hastings' account was that, after entering the apartment, the applicant - who was vomiting, crying and shaking - said that he would hand himself in on Monday after meeting and discussing the matter with the Office of Corrections.

15 At 8.30 pm the next evening, Saturday 8 July 2017, Ms Hastings went to Flemington Police Station, made a statement and disclosed where the applicant could be found. Police then went to Ms Hastings' premises in Elwood and arrested the applicant. In an interview conducted at 11.14 pm the applicant told police (among other things):

• I just heard a bang from behind and the car twist ... Until when I get off the car was burning. I freaked out and I ran away ... I didn't know what to do...
• I didn't know where the bike was coming from, speeding and hit me from the back
• the car didn't have registration
• ... I saw the motorbike had crashed
• I didn't see the rider
• ... I didn't know what to do. I got scared...because I saw the fire
• ... I stayed [around] the car five minutes
• ... At home, I freaked out and got confused. I didn't know what to do
• I said that I'm going to go to the police station ... tomorrow because there was no one looking after the cats

Ground 1: Lack of assistance did not have deleterious effect

16 On the plea, counsel for the applicant submitted that whilst the applicant's conduct in fleeing the scene was 'morally and legally reprehensible', there was no evidence that 'the impact of his departure had any deleterious consequence to the deceased'.

17 In this Court, counsel for the applicant submitted that there were other people present at the collision scene who rendered assistance by extinguishing Mr Gason's flames and administering CPR. Any offer of assistance by the applicant would have been superfluous. Further, nothing that the applicant failed to do after the collision - or, for that matter, before it - contributed to Mr Gason's death. Notwithstanding these matters, so counsel submitted, the judge did not take into account the fact that other assistance was available to Mr Gason immediately after the accident.

18 The judge touched upon the matter in two passages of her sentencing remarks:[8]

... the CCTV footage shows you remained at the scene following the collision for approximately 60-80 seconds. In that time you walked/ran around the car a couple of times, let the dog out of the car, walked to the opposite side of the road over multiple lanes before leaving the scene on foot. What you did not do was tender assistance to Mr Gason, that job left to other motorists and passers-by. Whilst others attempted to help him, your obligation to render assistance was not negated by their presence.

[Defence counsel] submitted your evasion of police was short-lived. I disagree. [Defence counsel] urged there was no evidence that the impact of your departure had any deleterious consequence upon the deceased. The latter is not to the point.

19 In our opinion, neither of these passages betrays any error on the part of the sentencing judge.

20 By virtue of ss 61(1)(a) and (b), and 61(3), of the Road Safety Act 1986, if a person is killed or suffers serious injury as a result of an accident involving a motor vehicle - and the driver of the motor vehicle knows (or ought reasonably to have known) that the accident had occurred and had resulted in a person being killed or suffering serious injury - the driver must immediately stop the motor vehicle, and must immediately render such assistance as he or she can. Plainly, the legal obligation imposed upon a driver involved in an accident (where death or serious injury occurs) under s 61 subsists whether or not there are others present also capable of rendering assistance.

21 In these circumstances, we consider that the judge was correct to observe that the applicant's obligation - imposed by s 61 - was not 'negated', and that it was 'not to the point' that the applicant's departure had no deleterious consequences for the deceased. By her remarks, the judge was saying no more than that the applicant's legal obligation was not abrogated because others were present who could render assistance, or because any assistance rendered would have made no difference to the outcome.[9]

22 Neither the presence of others nor the fact that Mr Gason was already dead reduced the applicant's moral culpability in any way. The judge was plainly correct to describe his conduct as 'inhumane, callous and cowardly'.

23 It is, of course, easy to conceive of cases where a driver's moral culpability for an offence might be the greater because of an absence of others in the vicinity capable of rendering assistance after an accident. An accident in a remote location where timely assistance might have made a difference to survival might provide an example.[10] But that is not this case.

25 When he committed the instant offences, the applicant was subject to a community correction order ('CCO'). So much aggravates his offending. Thus, at the Ballarat Magistrates' Court on 14 March 2017, the applicant was placed on a 12 month conditional CCO without conviction on two charges of criminal damage and one charge of contravening a family violence intervention order (relating to Ms Hastings). On that same occasion, the applicant was fined $1200 on charges of failing to give his name and address to the owner of a vehicle after an accident; unlicensed driving; possessing cannabis; and exceeding the prescribed concentration of alcohol within three hours of driving (.172 per cent).

26 The applicant's prior criminal history also includes offences of affray, theft of a motor vehicle and handling stolen goods (2011); dealing with the proceeds of crime and failing to answer bail (2015); and possessing cannabis (2016).

27 Now aged 30 years, the applicant was born in Sudan. His mother died when he was aged five. At age six, he was shot in the leg, the wound never properly healing. When aged 12 or 13, his father died, so that he was raised by his older sister and her husband. The family fled to Egypt when he was 13, where he remained in a refugee camp until aged 17. He came to Australia on a refugee visa in 2006.

28 In 2010, the applicant's damaged leg was amputated below the knee at Sunshine Hospital, leading to him spending 12 months in hospital and rehabilitation. He now has a prosthesis and, because he cannot stand for extended periods, has had difficulty finding employment. The stump of his leg and lower back are painful. At times he has been homeless.

29 Counsel for the applicant in this Court relied on a number of features in mitigation, including that:

• the applicant pleaded guilty at the earliest opportunity, having expressed his intention to do so at an early stage;

• there were others in the vicinity of the accident who were able to provide assistance;

• the applicant had not caused the collision or created the need for assistance;

• there was cause for 'guarded optimism' as to the applicant's prospects of rehabilitation;

• the applicant faced the prospect of deportation; and

• the applicant's background had been disadvantaged (having been born in Sudan, been shot in the leg at the age of 6, lost both of his parents by the age of 12 or 13 and lived in a refugee camp).

30 In a report dated 20 November 2017, Mr Jeffrey Cummins, a consulting clinical and forensic psychologist, described the applicant 'as being of normal although slightly below average intelligence'. At the time of the accident, the applicant 'was feeling psychologically directionless and he was simultaneously dependent on alcohol'. Mr Cummins thought that it was 'not possible to ascertain whether the most appropriate diagnosis was one of Chronic Adjustment Disorder as opposed to one of Post-traumatic Stress Disorder and possible Complex PTSD (reflective of at least two overlapping PTSDs)'. He said: 'In my opinion, if [the applicant] is incarcerated he is likely to become more psychologically lost and, in effect, therefore more traumatised'.

31 Further, Mr Guy Coffey, a clinical psychologist, in a report dated 1 August 2018, summarised the applicant's mental state as follows:

At the time of interviews [the applicant] was not suffering from a mental illness. He was suffering from Alcohol Use Disorder and Cannabis Use Disorder (DSM-5) both in early remission. Although not meeting diagnostic criteria of Post-traumatic Stress Disorder, he was experiencing a range of post-traumatic symptoms, both chronic, related to his childhood, and of recent onset, relating to the accident associated with the index offending. He was not clinically depressed but experienced a range of dysphoric symptoms. Formal assessment suggested markedly low intellectual functioning.

32 Counsel for the applicant submitted that the applicant's car was struck forcefully by a motorcycle which had been travelling well in excess of the speed limit, the impact being significant and causing extensive structural damage to the car. As a result, the applicant was left in a state of emotional turmoil. Counsel contended that the gravity of the offence of failing to render assistance is lowered if the offending is committed in a state of panic,[11] placing reliance on Mr Coffey's opinion that the applicant 'was highly anxious and shaken by the accident and in a state of emotional turmoil'. Mr Coffey reported:

It is not possible to precisely reconstruct what the various motivations and impulses were that led [the applicant] to leave the scene of the fatal collision. He denied when interviewed that he was conscious of wanting to avoid detection in relation to his driving disqualification but this is of course a possibility. He said that after he returned to [Chantelle Hasting's] house he had the thought that he might be somehow implicated in the death of the motorcyclist; it is possible that this idea was operating on him at the scene of the accident. It is also possible that he was influenced by his partner having walked away from the scene. Whatever the underlying motivations may have been, it is my opinion that he was highly anxious and shaken by the accident and in a state of emotional turmoil. Further, it is my opinion that owing to his limited emotional and intellectual resources, as described, he was rendered less capable of resisting an impulse to leave the scene than a person of normal emotional and intellectual capacity. This is not to say he was incapable of choosing to stay at the scene of the accident and to render assistance; but it is to suggest his behaviour in the immediate aftermath of the accident was strongly influenced by his psychological vulnerabilities whose origins lie in his developmental history.

33 In this Court, the applicant's counsel did not contend, however, that there was any link between the applicant's disadvantaged background and his offending.[12] Nor was it suggested that there was anything in the applicant's mental state that would increase the burden of imprisonment.[13] As to the prospect of deportation, the sentencing judge accepted that the applicant's potential deportation 'would weigh heavily on [him] while in custody', the applicant's counsel having told the judge that she could not say that the applicant 'will definitely be deported'.[14]

34 Counsel for the respondent submitted that the fact that the applicant had not caused the collision or created the need for assistance did not mitigate the offending. The duty to render assistance applies regardless of whether the driver is at fault. Having regard to a number of identified features, the respondent's counsel submitted that the applicant's offending was serious. The respondent submitted that the judge had, however, taken into account in the applicant's favour that his plea of guilty was at the earliest opportunity; that he faced the prospect of deportation; and that his status as an amputee with limited English would make his time in custody more difficult than a more able-bodied person. Further, the judge found that the applicant's disadvantaged background had some - albeit 'at best minimal' - 'relevance when sentencing'; that his plea was indicative of 'some remorse'; and that there was cause for 'guarded optimism' as to his prospects of rehabilitation.

35 In our opinion, the applicant's offending was, as the respondent's counsel submitted, serious. The collision left the car, the motorcycle and its rider in flames. Although he might not have realised the extent of Mr Gason's injuries, it must have been obvious to the applicant that life-threatening injuries had probably been suffered. His counsel properly conceded that this was so.

36 Yet the applicant made no attempt whatsoever to investigate the extent of Mr Gason's injuries, let alone make any attempt to render any assistance to him. Indeed, the applicant appears to have shown no concern at all for Mr Gason's plight, remaining at the collision scene for only a very short time. As the respondent's counsel pointed out, the applicant's offending did not occur from a fleeting or momentary decision to leave. He was forced by the consequences of the collision to exit his vehicle - he then walked around the car and freed the dog - but he did not render assistance.

37 It was, as we have said, an aggravating feature of the applicant's offending that he had been placed on a CCO only four months previously.[15] Moreover, it is a matter of concern that the applicant had recently been dealt with for failing to give his name and address to the owner of a vehicle after an accident (and for unlicensed driving; possessing cannabis; and exceeding the prescribed concentration of alcohol). Although the applicant is not again to be punished for his previous findings of guilt, his recent and relevant prior history bears directly on his moral culpability and prospects of rehabilitation, and increases the importance of specific deterrence as a factor in sentencing.[16]

38 The maximum period of imprisonment prescribed for the offences of failing to stop and to render assistance was increased from two years to 10 years (and the minimum period of driver licence disqualification for a first offence was increased from two years to four years) on 1 June 2005.[17] In more recent times - all other things being equal - it has not been unusual for sentences of three to four years' imprisonment to be imposed for the offence of failing to render assistance after a motor vehicle accident in which a person was seriously injured[18] or killed,[19] sentences of a similar order routinely being imposed for the allied offence of failing to stop after an accident[20] (although, it must be acknowledged, it is also not unusual for lesser sentences to be imposed).[21]

39 As was observed in Wassef, in relation to the offence of failing to stop after an accident:[22]

It was not in issue on the plea or before this Court that, given the need for general deterrence, a period of immediate imprisonment ought to be imposed. However, it was said that as the offending was not aggravated 'in the sense that leaving the scene of the accident otherwise caused the victim to suffer further injury or otherwise not receive medical attention which presumably was administered relatively soon after the accident,' three years and six months' imprisonment for the offence of failing to stop after an accident was too high. That submission cannot be sustained.

A sentence a little over one third of the maximum sentence may be within range without the presence of aggravating features. It was not necessary that the victim have suffered injuries directly attributable to the failure to stop before a sentence of this order could be made. As was stated by Lasry AJA in R v Harding:[23]

The object of the section is to force drivers to stop when particular events occur. If the particular event, as in this case, is a serious injury to a pedestrian, then the extent of the injuries is relevant to assessing the seriousness of the offence and the extent to which a failure to stop represents a failure to properly discharge the obligations of drivers in such a situation.

40 For the applicant to make good the claim that the sentence imposed upon him is manifestly excessive, it is not enough to show that the sentence is stern or, indeed, at the upper end of the available range. To succeed, he must demonstrate that the sentence imposed is altogether outside the range of those available in the sound exercise of the sentencing discretion.

41 Having regard to the objective gravity of the applicant's offending, the fact that he was on a CCO at the relevant time and his relevant prior criminal history, we consider that the sentence imposed upon him for failing to render assistance is within the available range (as is the order for cumulation and non-parole period).

[1] His date of birth is 1 January 1989.

[2] His date of birth was 12 March 1996.

[3] Road Safety Act 1986, s 61(3). The maximum penalty is 10 years' imprisonment (or 1200 penalty units).

[4] Road Safety Act 1986, s 30(1). The maximum penalty is two years' imprisonment (or 240 penalty units).

[5] Road Safety Act 1986, s 7(3). The maximum penalty is 25 penalty units for a first offence.

[6] The judge also disqualified the applicant from obtaining a driver's licence for a period of six years.

[7] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant's plea of guilty, she would have sentenced him to be imprisoned for five years and six months, with a non-parole period of four years.

[9] See Sarikaya v The Queen (2015) 73 MVR 1, 12 [40] (Maxwell P and Kaye JA) ('Sarikaya').

[10] See Wassef v The Queen [2011] VSCA 30 at [27]- [28] (Redlich JA, Maxwell P agreeing) ('Wassef').

[11] Counsel cited DPP v Martinez [2008] VSCA 165; (2008) 50 MVR 545, 550 [29]. In Martinez, the respondent's passenger in the stolen vehicle he was driving was injured in a collision in which a motorcyclist was killed. Mandie AJA (with whom Ashley and Neave JJA agreed) said in the passage cited:

The respondent's conduct in leaving the deceased on the road and departing the scene was appalling, as the sentencing judge recognised. However, I accept [counsel's] submission as to the mitigating circumstances that were also to be taken into account in fixing the term of imprisonment, namely, the respondent's state of panic and the need to come to the aid of his passenger. [Emphasis added.]

[12] See Bugmy v The Queen (2013) 249 CLR 571, 594-5 [40], [43]-[44]; DPP v Heyfron [2019] VSCA 130; DPP v L'Eveille [2018] VSCA 60; Marrah v The Queen [2014] VSCA 119.

[13] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[14] See Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288; DPP v Zhuang [2015] VSCA 96; (2015) 250 A Crim R 282; Konamala v The Queen [2016] VSCA 48; Da Costa v The Queen [2016] VSCA 49; (2016) 307 FLR 153; Schneider v The Queen [2016] VSCA 76; Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289; Magedi v The Queen [2019] VSCA 102.

[15] DPP v Milson [2019] VSCA 55, [66]; Bieljok v The Queen [2018] VSCA 99, [68]; DPP v Basic [2017] VSCA 376, [70].

[16] R v O'Brien and Gloster [1997] 2 VR 714, 718.

[17] Road Safety (Further Amendment) Act 2005, No. 24/2005, s 5. See DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85, 96 [51]. See also the Minister for Transport's second reading speech: Hansard, Legislative Assembly, 5 May 2005, 943.

[18] See Stewart v The Queen (2018) 83 MVR 535 (4 years); Vasilevski v The Queen (2018) 83 MVR 351 (3 years) ('Vasilevski').

[20] See Sarikaya (4 years); Wassef (3 years 6 months); Maher v The Queen (2017) 83 MVR 224 (4 years); Azzopardi v The Queen (2017) 82 MVR 119 (4 years).

[21] See Tokay v The Queen (2014) 69 MVR 24 (2 years 6 months); DPP v Chhatre (2014) 69 MVR 1 ($5000 fine/2 year CCO); R v Anderson (2015) 72 MVR 287 (9 months); Simpson v The Queen (2015) 72 MVR 147 (2 years); Nguyen v The Queen [2014] VSCA 53 (TES 2 years).

[22] Wassef, [27]-[28] (emphasis added, citations as in the original).

[23] [2008] VSCA 124; (2008) 50 MVR 413, 418.