DPP v Gany [2006] VSCA 148

Respondent's antecedents

5 The respondent arrived in Australia on 2 January 2004 from a United Nations refugee camp in Kenya. He had been there for some nine years after fleeing from Sudan in fear of persecution. As we have said, on 29 October 2004, the respondent was convicted at the Dandenong Magistrates' Court of being a learner driver driving a motor vehicle without an experienced driver and was released upon an undertaking to be of good behaviour until 29 April 2005. Eight days later, on 6 November 2004, as we have mentioned, the respondent was again detected as a learner driver driving without an experienced driver. He also had a blood alcohol content in excess of the prescribed limit. His reading was 0.137 per cent. No material was placed before the sentencing judge or this Court as to when the respondent was charged with the offence of exceeding the prescribed blood alcohol concentration limit. On 21 December 2004, however, the respondent was issued with a probationary licence. Two days later, on 23 December he was again detected driving a motor vehicle with a blood alcohol level exceeding the prescribed concentration limit. On this occasion the respondent's reading was 0.272 per cent. No information was provided on the plea or to this Court as to whether any steps were taken pursuant to s.51(1)(a)(2) of the Road Safety Act 1986 to charge the respondent immediately and give him notice of the immediate suspension of his probationary licence. On 24 February 2005 the offences committed by the respondent on 6 November came before the Dandenong Magistrates' Court resulting in the second of the prior convictions admitted by the respondent to which we have referred. It appears that the proceedings were heard ex parte. We were informed that there is a real issue about whether the respondent received notice of those proceedings or the order for disqualification that was pronounced.

Circumstances of offending

6 At about 2 pm on 19 May 2005, the respondent, with two friends John Wani and Tut Choat, drove the respondent's Holden sedan from Wani's home in Birdwood Avenue, Dandenong towards the Dandenong railway station. The respondent and his two friends had been drinking alcohol.

7 The respondent drove the vehicle east along Birdwood Avenue, across the intersections with Belfort Street and Benga Avenue. He approached the next intersection with Jones Road intending to turn right into, and travel south down, Jones Road. There is a roundabout at the intersection. The Dandenong West Primary School is on the south-west corner of the intersection. The speed limit in the vicinity was 50 kph. It was a fine, clear day and traffic was light.

8 As the vehicle turned right from Birdwood Avenue, around the roundabout into Jones Road, the respondent lost control of it. The vehicle mounted the kerb on the eastern side of Jones Road. The speed of the vehicle at this point was later estimated by investigating police to be between 60 and 62 kph.

9 It then travelled along the nature strip and footpath, collided with a speed sign, pulling it out of the ground, collided with a tree, partially pulling it from the ground, travelled for about another 29 metres and then veered off the eastern nature strip back onto the roadway. The speed of the vehicle at this point was later estimated by investigating police to be 52 kph.

10 The vehicle then mounted the kerb on the western side of Jones Road, colliding with a "no standing" sign and bending the pole over at its base, crossed the footpath and continued through a cyclone mesh fence and into the school grounds. There was no evidence that the brakes of the vehicle were applied between the vehicle mounting the kerb and the point of impact with the brick wall inside the school grounds. The vehicle had travelled some 50 metres. An expert from the Major Collision Investigation Unit expressed the opinion that if the brakes had been applied the vehicle could have stopped prior to entering the school ground. A subsequent mechanical inspection conducted on the vehicle revealed the vehicle to be roadworthy. No mechanical fault contributed to the collision.

11 Inside the school ground, children were playing in and near a fire hydrant box. Two children were inside the hydrant box with the door closed - Thiliny Meemanage (the victim in Count 1) and Angela Pomohaci (the victim in Count 4). Medina Hubanic (the victim in Count 3), Arzu Deveci (one of the victims in Count 5) and other students were nearby. Sabiullah Mashid (the victim in Count 2) was close by, near a brick wall adjacent to the school building.

12 Medina Hubanic saw the vehicle approaching. She attempted to open the hydrant door, but could not. She ran towards a gap in the brick wall. She yelled at Sabiullah Mashid to move. The vehicle hit the hydrant, pushing it into the brick wall. The impact caused the brick wall to collapse. Large blocks of bricks fell onto Medina Hubanic and Sabiullah Mashid.

13 The persons put at risk by virtue of the respondent's reckless driving (Count 5), included student Arzu Deveci, the passengers in the respondent's vehicle, Tut Choat and John Wani, and the other persons in the area from the point where the vehicle mounted the kerb in Jones Road to the point of impact.

14 Teachers and other students came to the assistance of the four injured children. Ambulance and police arrived shortly afterwards. A preliminary breath test was given to the respondent. The result was positive. The respondent was taken to the Dandenong Police Station and a breath analysis test was administered some two hours after the accident. The reading was 0.175%. The respondent participated in a record of interview and was assisted by an interpreter. He was co-operative and answered all questions. He admitted he was the driver. He said he was driving his car at the roundabout, the car had a problem with the wheels and he had a problem controlling the car and drove to where the accident happened. He said he had been drinking wine that day and started to drink at about 9.30, and finished at about 12 midday. He told investigators he had about four cups of wine during this period. He went on to describe how, it seemed he had only been driving for 20 to 30 seconds when he got up to that roundabout. He said he was pumping the brake and the brake was not working until the accident in the schoolyard occurred. He told the investigators he knew drinking and driving is an offence. He said he was "not fully drunk ... the alcohol was not fully in my blood and I was not very drunk that I cannot control anything. I was feeling ok that I can even handle the driving, and I know you cannot drink and drive."

The victims' injuries

15 Thilini Meemanage (the victim in Count 1) was born on 4 November 1993. She was aged 11. She was taken to the Monash Medical Centre and seen by Dr Haji. She had a 10cm large deploring thick laceration on the right side of her head extending to the back of the head, a 3cm cut above the right eyebrow, swelling and bruising of the right cheek and tenderness and grazing over the right side of the shoulder and back. The lacerations were sutured and X-rays and CT scans confirmed that there was no bone, nerve or brain damage. Thilini was discharged from hospital on 21 May and the sutures were removed on 27 May. The incident has caused Thilini serious emotional distress and affected her studies and functioning in daily activities.

16 Sabiullah Mashid (the victim in Count 2) was born on 12 November 1998. He was then aged 6. In the collapse of the brick wall his right foot sustained a virtual amputation. In a dual operation procedure his foot was amputated and a prosthesis created. Further surgery was undertaken on 29 May. Sabiullah now suffers from nightmares and feared being outside, particularly in the vicinity of the accident site. He had lived with his widowed mother and brother opposite the primary school. They had to find accommodation elsewhere since the accident because of the distress experienced by Sabiullah at being able to see the accident site through the front window. The victim impact statements show the nature and extent to which Sabiullah and his family have been affected by the accident and his permanent incapacity.

17 Medina Hubanic (the victim in Count 3) was aged 11 when the collision occurred. Medina sustained multiple fractures to the upper and lower right leg. She had a fractured right thigh bone that threatened to erupt through the skin. The injury caused her severe pain and distress. She also had multiple abrasions and skin lacerations of the right leg. On 20 May 2005 surgery was carried out to correct the fractured right leg. Medina was discharged from hospital on 29 May. Further medical intervention was required to remove an external metal fixator used to stabilise the fractured bones of the lower right leg. Medina now suffers from a limp and is restricted in her ability to walk and run. She experiences nightmares and flashbacks of the incident.

18 Angela Pomohaci (the victim in Count 4) was born on 9 November 1993. She was aged 11. Angela suffered a 3-4cm laceration to the left ankle requiring sutures and subsequent plastic surgery, grated skin to her neck, abdomen and right thigh and bruising and swelling to the left forearm and left thigh.

19 Arzu Deveci (the victim named in Count 5) was born on 9 May 1994. She was aged 11. She had suffered superficial grazes to her back, left hip, elbow and calf. Management consisted of analgesia as required.

Principles governing appeals by the Director of Public Prosecutions

20 In a judgment delivered by this Court, as presently constituted, earlier today, arising from a Director's appeal which was heard on the same day as the present appeal, the principles which govern appeals by the Director of Public Prosecutions were again referred to and it is unnecessary that they be restated.[1]

21 Mr Carter, who appeared for the respondent, referred to the need for this Court to exercise special caution before intervening on a Director's appeal because sentenced persons are exposed to a form of double jeopardy.[2] He correctly emphasised the vital importance to the administration of criminal justice of the discretion vested in a sentencing judge. Counsel also referred to the fact that this Court does not substitute its opinion for that of the sentencing judge merely because it would have exercised its discretion differently.[3] Thus, it was submitted, the decision by the sentencing judge to suspend the sentence was a discretionary matter "par excellence" which it could not be said was not reasonably open.[4]

22 It is well recognized that there will always be a place for the exercise of mercy and leniency where a judge intuitively regards a case as justifying such an approach.[5] But the rehabilitation of an offender and the presence of powerful mitigating features must be considered in conjunction with the objective criminality of the offending conduct so that the sentence imposed properly reflects the objects of just punishment, denunciation and special and general deterrence. The sentence, whether suspended or not, must be reasonably proportionate to the crime.

23 The Director's primary submission was that the sentences imposed did not adequately reflect the objective gravity of the respondent's conduct and were such as to "shock the public conscience".[6] The last of these criteria contemplates that the reasonable member of the public is not only appraised of the detail of the offending but also the mitigating circumstances relied upon by the respondent.

24 On the plea, it was submitted by the Director that the respondent's conduct called for an "immediate custodial sentence". Counsel for the respondent in their outline of submission had contended that as the senior Crown prosecutor had not in express terms submitted to the sentencing judge that a wholly suspended sentence should not be imposed or that a sentence limited to three years would be inadequate, the Director should not now be permitted to advance such an argument before this Court. It is not in issue that we must consider the attitude of the Crown before the sentencing judge[7] and that the Crown may not be permitted to advance contentions on the appeal, if they be inconsistent with its position before the sentencing judge or were not advanced before the sentencing judge.[8] For good reason, counsel for the respondent did not, in oral submissions, seek to further advance the argument that the Director had changed his position since the plea. It is clear from the transcript of the plea and his Honour's reasons for sentence, that both counsel for the respondent and the sentencing judge understood that the prosecution's contention that there should be an immediate custodial sentence signified that a wholly suspended sentence was not an appropriate sentence.

25 In calling for an immediate custodial sentence the Director relied upon the nature of the offending and upon the respondent's prior convictions and antecedents. As the respondent's history shows, on two prior occasions within the six months preceding these offences, the respondent had been found driving a motor vehicle with a blood alcohol level in excess of the prescribed limit. The evidence shows that he understood that he was acting contrary to the law when he committed the present offences. The Director submitted that his prior conduct bore upon the level of his moral culpability and his prospects for rehabilitation. In answer to this contention Mr Carter submitted that the respondent's moral culpability should be assessed on the basis that the respondent had never previously been present in court and had not been subjected to "judicial condemnation" for driving with a blood alcohol level in excess of the prescribed limit. It was submitted the respondent had no knowledge of the effects that alcohol would have on him. This submission is not easily reconciled with the respondent's plea of guilty to reckless conduct which necessarily involved an admission that he at least appreciated the risk created by consuming a substantial amount of alcohol and then driving and had disregarded the possible consequences that he may cause someone serious injury.

26 The evidence placed before the sentencing judge disclosed that the respondent had started drinking alcohol in 1992 in the aftermath of his father's tragic death. The report of the psychologist, Mr Patrick Newton, which was tendered on the plea, records the respondent's acknowledgment that he had been intoxicated on numerous occasions before coming to Australia. It also revealed that the respondent, after his arrival in Australia, had continued a drinking pattern which involved moderately heavy alcohol consumption. In our view, the submission that the respondent did not appreciate the effects of alcohol is without any merit.

27 The sentencing judge considered that there were powerful and exceptional mitigating circumstances. Counsel for the respondent relied heavily upon the respondent's genuinely expressed and demonstrated remorse for the consequences of his conduct, the fact that he made admissions and pleaded guilty at the earliest opportunity and the harshness of the 18 day period that the respondent had spent on remand. The respondent had been released from custody on a Credit bail programme on 6 June 2005. There was evidence placed before the sentencing judge that the respondent thereafter demonstrated remorse, insight, strong prospects of rehabilitation, was reconciled with his wife and two young sons aged two-and-a-half and eleven months, had continued his alcohol treatment programme with his medical practitioners, had ceased drinking and had complied in every respect with the Credit bail programme which involved attendance on a case manager, continued medical treatment and counselling. The respondent had also successfully complied with strict bail conditions. In addition to these factors a powerful plea was made on the respondent's behalf that his childhood and life history involving his family's persecution and a period of nine years in a Kenyan refuge camp prior to coming to Australia called for mercy in sentencing. The psychological assessment of the respondent supported the plea made on the respondent's behalf as to the deterrent effect of a suspended sentence because the respondent had experienced a frightening period of time on remand. Furthermore, the respondent has been at liberty for in excess of 12 months since these offences were committed and has continued to comply with strict bail conditions under the terms of the good behaviour bond imposed on 30 August 2005. All these mitigating factors led to the submission before this Court that the sentencing judge had acted in accordance with principle by not allowing the tragic but unintended consequences of these offences to swamp the considerations which warranted a lenient and merciful sentence. Actual imprisonment, it was said, would cause undue hardship to the respondent's family and be counter-productive to the public interest in his continued rehabilitation. Even if this Court concluded that the total effective sentence was manifestly inadequate, counsel for the respondent relied upon the broad over-riding discretion of this Court not to intervene on a Crown appeal. It was submitted that in giving effect to the double jeopardy principle there would be only a very slight increase in the total effective sentence imposed.

Negligently causing serious injury - reckless conduct placing others in danger of serious injury

28 The crime of negligently causing serious injury, contrary to s.24 of the Crimes Act 1958, carries a maximum of five years' imprisonment (counts 1-4). Criminal negligence must be of a kind that shocks the conscience and requires some punishment at the hands of the criminal law.[9] For a negligent act or omission to be criminal it must involve such a great falling short of the standard of care which a reasonable person would have exercised and involves such a high risk that serious injury would follow that the conduct merits punishment under the criminal law.[10]

29 By his plea of guilty to count 5 the respondent acknowledged that he had been reckless in the manner in which he drove his motor vehicle, placing persons in the school ground and the occupants of his car in danger of serious injury. Recklessly engaging in conduct that places another in danger of serious injury contrary to s.23 of the Crimes Act 1958 also carries a maximum penalty of five years. Recklessness connotes some foresight or awareness on the part of the offender of the consequence of causing serious injury to some person and indifference as to whether or not that consequence occurs.[11] The Director submitted that this count should have been viewed as at least as serious as counts 1 and 4. Because the mental element is different, reckless conduct would generally be viewed as more culpable than that which is negligent but that will not always be so.[12] Although the counts involving negligence alleged that serious injury had resulted, the Director submitted that the sentence of 18 months on count 5 was manifestly inadequate as a number of persons had been endangered as a consequence of the respondent's reckless conduct. It was said that his Honour was in error in imposing a lower sentence on count 5 than for counts 1 and 4. As the injuries to the victims the subjects of counts 2 and 3, were particularly serious, there was a basis for distinguishing the sentences on those counts from those imposed on counts 1, 4 and 5.

Failure to cumulate

30 The Director further submitted that a sentence of two and a half years on count 2 was very low having regard to the respondent's conduct that day, the consequences of his negligence and his driving history. It was said that such a sentence could only possibly be justified if it was part of a process which involved the imposition of moderate sentences on all counts with significant orders for cumulation. This had not occurred. Hence, the Director's contention that the failure to cumulate part of the sentences for counts 1, 3 and 4 on count 2 were specific errors which culminated in a manifestly inadequate sentence. Generally, some order for cumulation is called for on each count for negligently causing serious injury where an offender's driving causes injury to multiple victims. Whilst due regard must be given to the principles of totality and to the fact that the multiple injuries arose from a single course of driving conduct, an order of some cumulation will normally be required as part of the exercise of a sound sentencing discretion.[13] Where a victim sustains serious injury as a consequence of the offence of negligently causing serious injury, to make no order for cumulation would be to reduce such a consequence to a "meaningless statistic".[14] In the eyes of the criminal law, it is the existence of the separate obligations owed to the several victims of the one criminal act which, in part, defines the acts or omissions constituting the different offences arising from that act.[15] Thus, consequences to two separate victims arising from a single event is to be distinguished from the common law principle where multiple offences arise from substantially the same act. Then concurrency is more likely to run its course.[16] The factors enumerated in ss.5(1)(a), (b) and (d) of the Sentencing Act 1991 also lead to the conclusion that some order for cumulation was called for in relation to counts 1, 3 and 4. These considerations led to the submission by the Director that even if the sentence of two years and six months on count 2 was appropriate, orders of partial cumulation of those counts should have produced a sentence well in excess of three years even if the extent of the orders for cumulation were constrained because of the inappropriately low maximum penalty prescribed by the legislature for the offence of negligently causing serious injury.[17]

31 We are unable to accept the submission advanced on the respondent's behalf that it was within the broad discretion of the sentencing judge to make no order for cumulation in relation to counts 1, 3 and 4. In reaching this conclusion we recognise that there is no one correct sentence and that a sentencing judge must be accorded considerable autonomy in the exercise of the sentencing discretion. We have concluded that his Honour erred in failing to make any orders for cumulation and in the result arrived at a total effective sentence which was disproportionate to the gravity of the offence and which, despite the mitigating factors, was manifestly inadequate.

The order suspending the sentence

32 The circumstances will be rare where a sentence of imprisonment that is not manifestly inadequate will be made so by the decision to wholly suspend the sentence.[18] That is not to say that an order suspending a sentence of a term of imprisonment can be justified where the judge has failed to determine first, having regard to all relevant sentencing principles, that a term of imprisonment of three years or less should be imposed.[19] In D.P.P. v. Bright this Court considered the correct approach to the making of a Combined Custody and Treatment Order. The same approach is called for when making an order for suspension of a sentence:

33 The Director drew attention to the fact that his Honour first dealt with the question of suspension in his reasons for sentence and examined how and in what circumstances the sentence might be suspended. His Honour's analysis did not deal with the question of whether a total effective sentence of three years or less could appropriately be imposed. The Director submitted that, by first dealing with the question of an order suspending the sentence, there was a degree of artificiality in the subsequent construction of the sentences which his Honour then imposed in relation to each of the counts. We consider there to be much force in the submission that his Honour, in fixing the terms of the sentences imposed and making the limited orders for cumulation which he did, tailored the sentences for the purpose of allowing its suspension. As this Court stated in D.P.P. v. Bright, this is not the correct approach. His Honour was not permitted to do so.[21]

Idiosyncratic View

34 The Director also pointed to certain observations made by the sentencing judge during the course of the plea. In an exchange with the senior Crown prosecutor, his Honour suggested that there was no evidence that sentences imposed upon offenders for drink driving acted as a deterrent. Rarely will observations of the Court made during the course of a plea, by themselves and unless repeated in the reasons for sentence, constitute a basis for concluding that there was error in the exercise of the sentencing discretion. In the present case the Director submits that the sentencing judge expressed an idiosyncratic view that there was no evidence that the imposition of custodial sentences acts as a general deterrent on drivers who do not intend to cause injury when they drive on the road. Counsel for the respondent submitted that his Honour's remarks reflected the fact that though his Honour doubted the deterrent effect of a custodial sentence, his Honour understood the importance of general deterrence as a sentencing principle. If that be so, neither the reasons for sentence or the sentences imposed suggest that his Honour approached the sentencing task in that manner.

The importance of general deterrence

35 The eloquent and comprehensive plea in mitigation advanced by Mr Carter before his Honour and in this Court emphasised that there were powerful mitigating circumstances. But the respondent's extreme remorse, his steps towards rehabilitation and the respondent's suffering and deprivation during his earlier life had to be considered in conjunction with other important sentencing principles, including general deterrence. Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation. No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public. This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence.[22] In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process.[23] Denunciation and general deterrence must be at the forefront of the sentencing synthesis.[24]

36 In our view his Honour failed to have regard to the seriousness of the respondent's conduct and his disregard for the law. The sentencing judge was entitled to take into account all of the respondent's conduct up to the date of sentence.[25] The respondent, within a very short space of time, had amassed an appalling driving record which demonstrated a wanton disregard of the law. The respondent well understood that a learner driver or probationary driver is not permitted to consume any alcohol before driving his vehicle. He had little driving experience which was demonstrated by his failure to apply the brakes on his vehicle at any time whilst he careered from the nature strip on one side of the road across to the other side of the road before crashing through a cyclone fence into the school ground. The child victims were playing in the school grounds in circumstances which they and their parents and teachers were entitled to regard as safe. Four of the young children to whom the law owes a special responsibility were seriously injured. Those circumstances did not entitle his Honour to reach the conclusion that there were powerful circumstances mitigating against the imposition of an immediate custodial sentence. The nature and gravity of the offences and the respondent's antecedents called for the imposition of a head sentence and the fixing of a non-parole period.

37 The failure to cumulate any of the sentences on counts 1, 3 and 4 and the sentences imposed produced an egregiously inadequate sentence which, giving due recognition to the mitigating circumstances, would shock the public conscience and would cause a loss of confidence in the administration of justice. The Director's appeal should therefore be allowed.

38 The sentencing discretion must be exercised with a consciousness of the restraints imposed upon the Court by virtue of the principles of double jeopardy.[26] For that reason we would not alter the individual sentences imposed on counts 1, 2 and 4. We would sentence the respondent to two years and six months' imprisonment on count 3 and to two years' imprisonment on count 5. We would order that three months of the term of imprisonment on each of counts 1, 3, 4 and 5 be served cumulatively upon count 2 and upon each other making a total effective sentence of three years and six months' imprisonment. We would order that the respondent serve a period of one year and nine months' imprisonment before he is eligible for parole.

39 We have already noted that on the summary charge of having more than the prescribed concentration of alcohol present in his breath within three hours of driving contrary to s.49(1)(f) of the Road Safety Act 1986, the sentencing judge convicted the respondent and adjourned the further hearing for three years on conditions including a special condition that his licence be cancelled for three years and he be disqualified from obtaining a licence for that period of time. The Director by Ground 2 of the Notice of Appeal complains that his Honour was in error in imposing such a condition as he was required to make an order cancelling all licences and disqualifying the respondent from obtaining a licence. Pursuant to s.89(1)(b) of the Sentencing Act such a condition should have been pronounced as an order as a consequence of the convictions on counts 1-4,[27] and pursuant to s.50(1A) of the Road Safety Act such an order should have pronounced as a consequence of the conviction for the summary offence. We therefore propose to make such orders in relation to both convictions.

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties