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[2022] VSCA 17
General information, not legal advice.
Court of Appeal (Vic)
2022-02-24
Mr J, Forrest JA, Walker JA
Original judgment source is linked above.
[2021] VCC 381 (Judge Hogan)
CRIMINAL LAW - Appeal - Sentence - Dangerous driving causing death - New evidence - Applicant's non-citizen immigration status not before sentencing judge - Prospect of deportation upon release from custody could not be taken into account - Whether Parole Board practice in respect of non-citizen prisoners can be taken into account in sentencing exercise - Prospect or real chance of deportation constitutes extra-curial punishment and adds to burden of imprisonment - ; , , applied; , - Appeal allowed - Resentenced to three years' imprisonment with non-parole period of 18 months.
1 The applicant pleaded guilty in the County Court at Melbourne to a single charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958. The offending conduct occurred on 13 October 2019. He was sentenced on 1 April 2021 to a sentence of five years' imprisonment with a non-parole period of two years and six months. The full sentencing details are set out in the table below.
Dangerous driving causing death (contrary to Crimes Act 1958 s 319(1))
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991
7 years' imprisonment, with a non-parole period of 5 years
Licence cancellation and disqualification from driving for 18 months from 1 April 2021
2 The applicant seeks an extension of time in which to file his notice of application for leave to appeal against sentence. The respondent does not oppose the extension and, in the circumstances that we shall set out, it will be allowed.
3 The applicant advanced three proposed grounds of appeal. They are as follows:
1. New evidence establishes that the applicant is a non-citizen liable to deportation, a circumstance that was not raised before the sentencing court and could not have been taken into account by the learned sentencing judge.
2. The learned sentencing judge erred in the way she treated the events leading up to the collision, including the manner in which her Honour treated the medical condition of the Applicant.
3. In all the circumstances the sentence imposed on charge 1 was manifestly excessive.
4 For reasons that follow, ground 1 has been established. Leave to appeal will be granted, the appeal will be allowed, and it will be necessary for us to resentence the applicant.
5 At about 4:00 pm on 13 October 2019 the applicant was driving his Mitsubishi sedan west on Clyde-Five Ways Road ('CFW Road'), Clyde in Victoria. CFW Road terminates at its intersection with the South Gippsland Highway ('SGH'). The applicant wished to turn right to travel north on that highway. We have viewed CCTV footage of the subsequent events. This footage was exhibited at the applicant's plea hearing. The applicant was confronted by a 'give way' sign at that intersection, which obliged him to give way to all traffic. The SGH at that location is a divided road with two lanes for north- and southbound traffic. The intersection is constructed so that vehicles wishing to turn right into the SGH from CFW Road may, if safe, proceed into the intersection to a 'relief area' at a substantial break in the median strip. Vehicles in this area may remain stationary, protected from southbound traffic until it is safe to proceed.
6 While the applicant waited at the eastern kerb of the SGH, a black Holden Commodore driven by Mr Valet Lazarovski occupied one of the two spaces in the centre relief area. The applicant proceeded to the vacant space in that area. His progress was brusque and appeared to other road users to be aggressive or impatient. While proceeding into the relief area the applicant failed to give way to a white Skoda, thus impeding its progress. The details of this manoeuvre need not be recited, however, the driver of the Skoda, Mr Kamalpreet Khullar, later told police, 'The driver of the [Mitsubishi] Magna looked like he was in a hurry, agitated. I had right of way but the Magna [sped] across the southbound lanes.' After the applicant had become stationary in the relief area beside the black Commodore, the applicant appeared to Mr Lazarovski to be aggressive and in a hurry. Mr Lazarovski later told police,
I felt uneasy as I was sitting in the middle. I wasn't comfortable to go, so I waited. I was stationary for about 10 seconds when a car came into the break in the median strip to my left. The driver looked aggressively at me, he was shaking his head, encouraging me to move forward. He appeared to be in a rush. He had a real problem because I was stationary. I couldn't see, so I didn't move.
7 The applicant was stationary beside the Commodore for a few seconds only. He looked over his left shoulder to the northbound lanes. His vision was partially obscured by the angle of his vehicle and the presence of Mr Khullar's white Skoda. The applicant then proceeded to execute his right turn, again brusquely, across the face of the still stationary Commodore. A northbound motorcycle in the more central of the two northbound lanes immediately collided with the left front door area of the applicant's Mitsubishi. The motorcyclist, Mr Stephen Troman, sober, riding within the 80-kilometre-per-hour speed limit, having just enjoyed a social lunch with friends, had no chance. He died at the scene. We have viewed a video re-enactment of the scene at the intersection immediately prior to the applicant's ultimate fatal manoeuvre. This was also exhibited at the applicant's plea hearing. It is clear to us that the applicant's view to the south was partially obscured as we have described.
8 The applicant's capacity to drive was the subject of some debate at the plea. In short compass, he was concerned enough about the shortness of breath, dizzy spells and chest tightness he was experiencing to consult his general medical practitioner at approximately 11:00 am on 13 October 2019. He provided a history of intermittent symptoms over the preceding fortnight, and presented as anxious and stressed. The doctor advised the applicant not to drive and provided him with written referrals to the Emergency Department of Frankston Hospital and to a cardiologist for an echocardiogram. The applicant advised the doctor that a friend would drive him to the hospital.
9 Against the doctor's advice the applicant then drove from the surgery to his workplace. He told a colleague that he was feeling unwell and would leave work after conducting an already once-cancelled appointment. In the event, the appointment did not conclude until about 3:00 pm and the applicant drove from work at 3:30 pm. The fatal accident occurred during the applicant's drive home.
10 There is no suggestion that the applicant suffered a medical emergency at the time of that accident, however, it is clear to us that he was anxious and distracted by his symptoms, and no doubt his concerns more generally about his cardiac health, albeit that a subsequent hospital assessment cleared the applicant of any cardiac irregularities.
11 It is against this background that the applicant entered the intersection in the manner described at [6]-[7].
12 The judge's comprehensive sentencing reasons set out with great care the circumstances of the fatal accident, the applicant's circumstances, and her Honour's conclusions as to the objective gravity of the offending. It is unnecessary to set out those reasons in detail as we have received evidence on this application that will inevitably reopen the sentencing discretion. Given the importance of the new evidence (it is not 'fresh' evidence), the respondent did not argue against its reception or the reopening of the resentencing discretion. It is convenient, however, to set out a short summary of her Honour's reasons.
13 The judge set out in detail the circumstances of the collision and the applicant's health problems. It is unnecessary to repeat those matters. She summarised the applicant's counsel's submissions on the plea and his contention that the offending involved relatively low moral culpability given the absence of speed, intoxication or substance abuse, prior erratic or competitive driving, failure to stop, sleep deprivation or similar. The judge set out the prosecutor's competing submission that the offending was 'high-end offending' given the risks that the applicant took in driving at all (given his medical advice) and in the manner of his driving at that intersection. Also relevant, it was submitted to the judge, was the number of people put at risk by an aggressive and partially blind entry into a main highway.
14 The judge set out her assessment of the seriousness of the offending. She set out the elements of the offence and explained the notion of 'dangerousness'. She noted that the immediate cause of Mr Troman's death was the applicant's driving, and that that driving must be evaluated in all its circumstances, including whether the applicant should have been driving at all. After setting out the applicant's medical circumstances and the immediate physical circumstances of the fatal collision, her Honour concluded:
In these circumstances, I am satisfied beyond reasonable doubt that the stress and anxiety you were experiencing, associated with the symptoms of chest pain and dizziness and breathlessness that you had suffered for some days prior to this event, and intermittently on the day of the event, coupled with your knowledge of a family history of cardiac issues and a concern that you may experience a cardiac event, was a very significant contributor to the way in which you drove at the intersection immediately prior to the collision ...
I am satisfied beyond reasonable doubt that you were distracted by your symptoms and health concerns from fully focusing upon your driving and obeying the road rules. This lead to you entering a highway impatiently and without ensuring that you had an adequate view of oncoming traffic when you knew that vehicles would be most likely travelling at 80 kilometres per hour. You were plainly in a hurry to get to the hospital to be assessed and, in all of the circumstances, I consider that the likelihood of a collision was high. Further, the expected speed of 80 kilometres per hour with vehicles travelling in the northbound lane nearest to the break in the nature strip, made it highly likely that if your sudden movement into that lane resulted in a collision, serious injuries to another road user or users would occur.
I do not consider your manner of driving to be in the highest category of culpability, like a person who is deliberately speeding or showing off, performing manoeuvres on a highway, as though engaged in some sort of spectator sport.[1]
15 The judge then set out in detail the consequences for Mr Troman's family as recounted in the Victim Impact Statements. It is sufficient to state that those consequences have been profound and enduring. They were rightly described by the judge as 'deeply moving'.[2]
16 Her Honour turned to the applicant's circumstances. In short, the judge noted:
17 The judge considered that denunciation, general deterrence and just punishment must assume significance in the sentencing mix. This was, however, intended to be tempered with, in this case, a degree of mercy:
Your manner of driving at the intersection of Clyde-Five Ways Road and the highway was a serious breach of the proper management and control of your vehicle at an intersection where the risks of potential collision with vehicles on the highway travelling at 80 kilometres per hour must have been known to you. In fairness, I must say that I regard this intersection as a problematic one. In my view, the layout of the intersection is such that it is eminently foreseeable that vehicles will encounter difficulty negotiating their way from the Clyde-Five Ways Road across the southbound carriageway in order to turn right onto the northbound carriageway of the highway. That degree of difficulty is likely to be high when, as on the day of this collision, there is a steady flow of traffic on the highway and no traffic lights which would compel traffic on the highway to stop in order to secure the safe passage of vehicles taking the route which you were taking on this fateful day. The layout of the intersection with these attendant difficulties cannot excuse your offending behaviour. However, I make the observation that, in these circumstances, the human frailty of impatience is more likely to come to the fore and, in your case, it was magnified by the background of stressors to which I have already referred.
Whilst I consider that a person with your physical symptoms on this day should not have been driving at all, as human beings, we are all imperfect, and when under pressure, particularly from multiple stressors, the capacity to be diligent about the duty of care we owe to other road users as a driver can become clouded. As I have said, you behaved in a way which was very irresponsible in relation to your own health and in relation to the safety of other road users. However, I am moved by the plight of your partner, who has suffered port-partum depression and relied heavily upon you, and the fate of your very young children who must, by reason of the sentence I impose, be deprived of their father's love, care and financial support for a significant period of time. There can be no price placed upon the precious life of Mr Troman. It cannot in any way be measured by the length of a term of imprisonment imposed upon you, but I do have an obligation to deter others from such serious irresponsible driving and impose just punishment. Having said that, I do consider that this is a case where, for the sake of your partner and young children, there is some basis for exercising mercy in the sentence which I intend to impose.[10]
18 With respect to her Honour we agree with those statements and can express them with no more clarity or conviction.
20 Ground 1 contends that new evidence establishes that the applicant is a non-citizen liable to deportation. This was not raised before the sentencing judge and could not have been taken into account.
21 Whilst it was stated clearly on the plea that the applicant came to Australia with his mother at the age of 12, his residency status was not explored. The applicant's counsel, who appeared before us, and his solicitor (by affidavit) did not shirk from taking full responsibility for what was obviously a fundamental oversight. They are to be commended for this.
22 Evidence placed before this Court by the applicant and with the consent of the respondent established the following:
23 This evidence adduced on the application will be admitted in the exercise of our discretion to receive such evidence. Whilst it is not strictly 'fresh evidence', this 'new evidence' is, in our view, a matter of real significance; its absence caused the sentencing judge to proceed upon an 'imperfect appreciation of the true facts as to the applicant's immigration status'.[15] As this Court observed in Allouch,[16] there are some limited circumstances in which this Court can receive additional evidence on an appeal against sentence. They are:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive;
(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[17]
24 The applicant's non-citizen status was a significant sentencing consideration that was in existence (if not appreciated) at the time of sentence. In our view a lesser sentence would certainly have been imposed had the judge been made aware of the applicant's true immigration status.
25 We note that the respondent did not contend that ground 1 had not been established.
26 As ground 1 has been established, it is unnecessary to consider grounds 2 and 3, which, if established, would only have resulted in the reopening of an already reopened sentencing discretion.
27 It is unnecessary to set out again the various factors that weighed in the sentencing calculus before the sentencing judge. This was a difficult sentencing exercise involving a confined but dreadful piece of impatient and, in our view, aggressive driving. To our observation, the applicant was bent upon getting through the relevant intersection as quickly as he could with little or no real care for the welfare of other road users. General deterrence and denunciation must weigh heavily against him. On the other hand, he is clearly a decent man, devoted to his family, profoundly and debilitatingly remorseful, unlikely to offend again and with excellent rehabilitation prospects. As we have said, this was a difficult sentencing exercise and one upon which reasonable minds may differ, and that is before the addition of the new evidence.
28 It is well accepted that the prospect of an offender's deportation is a relevant consideration in the sentencing process.[18] It may bear on the impact a sentence of imprisonment will have 'both during the currency of the incarceration and upon ... release'.[19] In an appropriate case, 'it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia'.[20] Assuming the case is appropriate, and albeit the applicant's immigration status is not finally determined, we consider there is no reason in principle why this Court, if the evidence allows it, cannot take into account the real chance of deportation as a relevant factor to be considered in mitigation. In this case, as a consequence of his offending, the applicant's residency visa has been cancelled. He will certainly be deported unless his request for revocation of that cancellation decision is successful at some future undetermined date. It requires no prohibited 'speculation'[21] to conclude that there is a real prospect that the applicant will be deported either at the conclusion of his sentence or at some earlier date as determined by the Adult Parole Board.
29 The applicant relied in submissions on the current practice of the Adult Parole Board that prisoner non-citizens subject to a deportation order will ordinarily not be paroled until they have exhausted challenges to that order. Evidence was also adduced that consideration of the applicant's request to the Minister to revoke the cancellation of his visa is likely to be delayed until immediately prior to his release from custody. Thus, the applicant contended, he is likely to 'serve every day of any head sentence that is ultimately imposed upon him'. The applicant submitted that the prospect of being imprisoned and separated from his family for a period well in excess of his non-parole period would cause him great stress and anxiety, and add to the already considerable custodial burden. This submission was supported by a report from Mr Cummins, a forensic psychologist of long experience.
30 The respondent accepted that the applicant's concerns about the timing of parole, if it is granted at all, and its impact on the custodial burden is a legitimate matter to be considered in the exercise of the sentencing discretion.
31 We of course recognise that this Court is statutorily prohibited from having regard to any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind.[22] In our view the permissible ways that the Court can consider the very considerable chance that the applicant will be deported are as follows:
(a) The prospect or real chance of the applicant's future deportation can be considered an extra-curial form of punishment.[23] This is particularly so in the applicant's case, where he has been resident in Australia since childhood and has all of his roots firmly in this country.
(b) His time in prison will, we find, undoubtedly be more burdensome than it is for others, or indeed than it otherwise would be for himself, due to anxiety about the prospect of future deportation. Given the undisputed evidence of the applicant's tendency to anxiety and depression and his inwardly focused devotion to his family, both this factor and factor (a) are of some importance.
32 Given the view we have taken as to the significance of both factors (a) and (b), it is unnecessary to consider the 'vexed question[s]' of whether an allowance ought be made for any reduced prospects of being granted parole[24] (which was not directly advanced by the applicant), or whether the applicant's perception of these reduced prospects ought merit some allowance as adding to the burden of his incarceration (which was directly advanced). Without deciding this, the former question at least would seem to confront the obstacle of s 5(2AA)(a) of the Sentencing Act, and the latter question is subsumed by the other more prominent factors that add to the applicant's custodial burden.
33 Other evidence was received on the resentencing exercise. Mr Cummins has opined that the applicant continues to suffer from post-traumatic stress disorder and his mental health has declined significantly since his imprisonment. He is overwhelmed by his circumstances and experiences ongoing suicidal thoughts. He ruminates on the prospect of deportation and being removed to a country where he has no family ties at all.[25] He fears being separated from his wife and children.
34 The applicant is entitled to recognition of the additional utility of his guilty plea in the context of the COVID-19 pandemic,[26] and we accept that the custodial burden has been and will be magnified for an indeterminate period by the effects of the pandemic on custodial conditions. We agree with the original sentencing judge that there is scope to involve the principle of mercy in the ultimate sentence we are to impose. We do not lose sight of the seriousness of the applicant's offending nor of its appalling consequences.
35 Balancing these factors as best we can, we shall resentence the applicant to three years' imprisonment. We shall set a non-parole period of 18 months. We declare presentence detention at 335 days. We further declare pursuant to s 6AAA of the Sentencing Act that but for the applicant's plea of guilty we would have sentenced him to four years' imprisonment with two years and six months to be served before parole eligibility.
[1] DPP v Hague [2021] VCC 381, [28]-[31] (Judge Hogan) ('Reasons').
[8] See Worboyes v The Queen [2021] VSCA 169 ('Worboyes').
[11] Mr Tatti, the applicant's treating psychologist, offered this opinion. At the time of the plea the applicant was suffering from acute depression, anxiety and post-traumatic stress symptoms.
[14] See Adult Parole Board of Victoria, Parole Manual: 2020 Edition (Adult Parole Board of Victoria, 2020) 36.
[15] Allouch v The Queen [2018] VSCA 244, [49] (Beach and Weinberg JJA) ('Allouch').
[17] R v Nguyen [2006] VSCA 184, [36] (Maxwell P, Neave and Redlich JJA) (citations omitted).
[18] Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 294 [25] (Maxwell P, Bongiorno JA and Beach AJA) ('Guden'); [2010] VSCA 196.
[21] Ibid 295 [28]. See also R v Khem [2008] VSCA 136, [31] (Pagone AJA, Ashley JA agreeing at [1], Neave JA agreeing at [16]).
[23] Guden [2010] VSCA 196; (2010) 28 VR 288, 294 [25]; [2010] VSCA 196.
[24] Wan v The Queen [2019] VSCA 81, [28] (McLeish and T Forrest JJA).
[25] The applicant's grandparents have passed away, and both parents reside in separate families in Australia.
[26] Worboyes [2021] VSCA 169.
Hague
The Queen [2022] VSCA 17
(2010) 28 VR 288