Cook v The Queen [2021] VSCA 38

CRIMINAL LAW - Appeal - Sentence - Applicant caused motor vehicle accident by driving whilst intoxicated and speeding - Victim suffered severe and permanent injuries - Applicant pleaded guilty to negligently causing serious injury - Total effective sentence of 5 years and 3 months' imprisonment with non-parole period of 3 years and 8 months - Whether sentence and non-parole period manifestly excessive - Substantial mitigating circumstances - Manifest excess reasonably arguable - Leave to appeal granted.

1 The applicant pleaded guilty, before a judge of the County Court, to one charge of negligently causing serious injury, the maximum sentence for which is ten years' imprisonment. After a plea that was presented on his behalf, he was sentenced to a total effective sentence of 5 years and 3 months' imprisonment, with a non-parole period of 3 years and 8 months. The judge made a declaration, pursuant to s 18(4) of the Sentencing Act 1991, that the applicant had served 205 days' pre-sentence detention.

2 The applicant seeks leave to appeal on the ground that the sentence and the non-parole period were manifestly excessive.

3 The charge arose out of a motor vehicle accident that occurred at about 7:40 pm on 10 January 2019, when a motor vehicle driven by the applicant in a southern direction on Springvale Road, Nunawading, collided with a vehicle driven in the same direction by the victim, Zeeshan Burhan. During the period leading up to the accident, the applicant had been observed to be driving his vehicle in an erratic manner at high speeds, that were well in excess of the permissible speed limit of 80 kilometres per hour. It was estimated, after the accident, that the applicant's speed was 168 kph some 2.5 seconds before impact, and 172 kph at 1.5 seconds before impact. It appeared that the applicant applied his brakes on his vehicle only one second before colliding with Mr Burhan's vehicle. The applicant had been consuming alcohol for a period of four hours before he commenced his journey along Springvale Road at 7:20 pm. One hour after the accident his blood alcohol content was 0.107 grams per 100 millilitres of blood.

4 As a result of the collision Mr Burhan suffered very severe and permanent injuries. Mr Burhan was then 23 years old, having come to Australia in the previous year from Pakistan on a student visa to undertake a Master's Degree in Professional Accounting and International Finance. He was conveyed by ambulance to the Royal Melbourne Hospital where he underwent specialist surgery for a large perforation of the stomach and intestines with attendant complications. In addition, he suffered a complicated left wrist fracture, a complicated unstable spinal bone fracture at the lumbar level, and fractures of his right big and second toes. On arrival at the hospital, Mr Burhan underwent specialist emergency surgery in respect of the perforation of the stomach and intestines. Two days later he underwent further surgery involving three level spinal fusions at the lower thoracic and upper lumbar levels. The surgery also involved open reduction and internal fixation of the left wrist.

5 Following the surgery, Mr Burhan remained in intensive care for five days. After fourteen further days in hospital he was transferred to a rehabilitation centre where he remained for four months. After his discharge from that centre, he flew back to Pakistan to continue his recovery with his family. As a result of his injuries Mr Burhan experienced significant ongoing pain issues, and he suffered a post-traumatic stress disorder which was attended by panic attacks, nightmares and flashbacks.

6 Plainly the offending by the applicant in this case was particularly serious, both in terms of the degree by which his driving departed from the standard of care expected of a motorist, and in terms of the consequences to his victim, Mr Burhan. Counsel, who acted for the applicant on the plea, realistically conceded that the offending fell within the 'upper range' of seriousness for the offence. In the absence of appropriate mitigating circumstances, it is, I consider, unarguable that the sentence imposed on the applicant was within the range of sentencing options available to the sentencing judge.

7 However, there were a number of substantial mitigating circumstances which were accepted by the judge in her comprehensive and thorough sentencing reasons.[1] They included the following:

(1) Immediately after the accident, the applicant gave full cooperation to the police who investigated the circumstances of the accident. In his interview, he made candid and unqualified admissions. He did not seek, in any way, to minimise the seriousness of his offending.[2]

(2) The applicant pleaded guilty at the earliest opportunity. The judge considered that the applicant's 'early and sincerely contrite plea of guilty' entitled him to a 'high discount upon the sentence', and her Honour stated that she had placed considerable weight on that factor.[3]

(3) The applicant had a background of disadvantage. His father abandoned him, and his three siblings, when he was three years of age. He then suffered emotional and physical abuse over a number of years from a step-father. The judge accepted the opinion of the forensic psychologist, Mr Ian Mackinnon, that the applicant's traumatic childhood had resulted in an early inappropriate dependence on alcohol, and in the applicant undertaking employment which involved traumatic experiences. The judge accepted that those factors contributed to a long-standing post-traumatic stress disorder which perpetuated the applicant's maladaptive reliance on alcohol.[4] The applicant had sought to desist from his use of alcohol, but on the day of the accident, following a stressful argument with his partner, he had indulged in the consumption of it in the manner described.

(4) A substantial number of character references were tendered at the plea, which satisfied the judge that the applicant is 'a fundamentally decent and caring person'.[5] The judge noted that two years previously the applicant had undertaken full-time care of his sister's five children, who were then aged between 6 and 13 years, while his sister undertook some rehabilitation. The references tendered on the plea spoke of the applicant's 'kindness and good moral compass'.[6]

(5) Except for one minor infraction of the law (when the applicant was convicted and discharged in 2008 on one charge of being drunk and disorderly in a public place), the applicant had no relevant previous convictions.[7]

(6) The applicant had a very good work history. The references from those persons who had worked with him spoke highly of his reliability and competence in challenging situations.[8]

(7) The judge accepted that the applicant was 'truly and deeply remorseful'.[9] At one point, in late 2019, he was so stricken with remorse that he attempted to commit suicide by an overdose of medication. The applicant's feelings of guilt culminated in his demonstration of a willingness to be punished for his offence by not seeking bail at the committal mention and surrendering himself then into custody.[10]

(8) The judge assessed the applicant to have very good prospects of rehabilitation.[11]

(9) The applicant's psychological vulnerabilities and his mental health conditions, which required treatment by medication and psychological counselling, would make serving a term of imprisonment more onerous than otherwise.[12]

(10) The conditions to all prisoners during the current COVID-19 pandemic have been more onerous, involving a total lockdown of prisoners in the Fulham Prison in which the applicant was then incarcerated.[13]

8 As I have stated, in the absence of mitigating circumstances, the sentence imposed by the judge was within range, reflecting the gravity of the offending and the severe consequences to the victim. However, taking into account the combined weight of the mitigating circumstances that were accepted by the judge, and the maximum sentence for the offence, it is, in my view, reasonably arguable that the sentence imposed on the applicant was wholly outside the range of sentencing options available to her Honour. While ultimately it will be a matter for a fully constituted appellate court to determine whether that argument should succeed, I am persuaded that it is of sufficient moment to justify the grant of leave to the applicant.

9 Accordingly, the applicant will be granted leave to appeal against the sentence.

[1] DPP v Cook [2020] VCC 1172.