Court of Appeal (Vic)|2014-02-13|Before: Maxwell P, Nettle JA, Priest JA

Khoja v The Queen [2014] VSCA 9 (13 February 2014)

DPP v Khoja (Unreported, County Court of Victoria, Judge Taft, 19 October 2012)

CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death, negligently causing serious injury (4) - Sentence of 8 years and 6 months, non-parole period of 5 years and 6 months - Plea of guilty - Remorse - Stress disorder developed in response to offending - No impairment of mental functioning at time of offence - Whether reactive mental condition required moderation of general or specific deterrence - Whether reactive condition constituted injury sustained during offending - No sentencing error - Appeal dismissed - applied - (Vic)

1 Riyaz Khoja pleaded guilty to one charge of culpable driving causing death, an offence carrying a maximum penalty of 20 years' imprisonment. He also pleaded guilty to four charges of negligently causing serious injury, an offence which carries a maximum penalty of 10 years' imprisonment.

2 He was sentenced to an aggregate term of imprisonment of 8 years and 6 months. A non-parole period of 5 years and 6 months was fixed. He now appeals, by leave, against that sentence.

3 All three grounds of appeal concern the stress disorder and associated depression which Mr Khoja developed following the accident. According to the expert evidence, this condition developed as a direct response to the accident, reflecting Mr Khoja's guilt and shame and his feelings of responsibility for the grievous consequences of his driving.

4 For reasons which follow, we have concluded that this reactive mental condition, though severe:

(a) did not require any moderation of general or specific deterrence; and

(b) was not an injury sustained in the course of the offending, such as might otherwise have instituted past punishment.

5 Late on the evening of 16 November 2010, Mr Khoja went out with friends to celebrate his planned return to India the following day. He drank four or five stubbies of full-strength beer. Early the following morning, he and his friends went to a hotel in the city. They travelled in a Ford Falcon owned and driven by Mr Khoja's friend, Nihil Patel. During the drive, Mr Khoja repeatedly asked Mr Patel if he could be allowed to drive the Ford. They purchased more beer at the hotel and then Mr Patel agreed to let Mr Khoja drive the car on the trip back home, with his five friends as passengers.

6 As they left the city, Mr Khoja began to speed. He drove with only one hand on the steering wheel and deliberately steered the car from side to side, causing it to zigzag. His friends were scared and repeatedly told him to slow down and stop zigzagging. The front seat passenger, Deepa Jagad, even spoke to Mr Khoja in their regional dialect, telling him to slow down.

7 Unaccountably, Mr Khoja ignored these protestations by his friends. While travelling in Lygon Street, Brunswick, Mr Khoja lost control of the car, which veered off the road to the left, colliding with a power pole and almost splitting in half. At the time, the car was travelling at an estimated speed of 114 kmh. The speed limit was 60 kmh. Mr Khoja had an estimated blood alcohol content of between 0.08 per cent and 0.108 per cent.

8 One passenger was killed. Each of the four other passengers was seriously injured. Mr Khoja himself escaped with minor injuries. Specifically:

The deceased was Nihil Patel, aged 22, who was not wearing a seatbelt and took the full impact of the collision with the pole (charge 1 - culpable driving causing death);
Deepa Jagad, aged 23, suffered back pain for a few days, together with a sore chest, minor scratches on her arms and a small cut on her ear (charge 2 - negligently causing serious injury);
Saurabh Barad, aged 23, was wearing a seatbelt. He suffered a haematoma and two superficial lacerations to his head, a deep laceration to the back of his right hand, pain to the right knee and a headache (charge 3 - negligently causing serious injury);
Parth Patel, aged 20, was not wearing a seatbelt. He suffered cuts to his face, the top and back of his head, his right arm and his back. He also suffered from back pain (charge 4 - negligently causing serious injury); and
Pavan Bichal, aged 23, was not wearing a seatbelt and was asleep in the car at the time. He was found lying unconscious on the road, five metres from the vehicle, and suffered head, neck and rib injuries, a fractured pelvis and a fractured elbow, and needed to have a small operation on his left wrist. He was treated for acquired brain injury, first at the Royal Melbourne Hospital for two weeks and then in Epworth Camberwell for four weeks' intensive rehabilitation. This was followed by outpatient physiotherapy for six months after his discharge. He has suffered from cognitive difficulties, including mood disturbance and visual hallucination. As a result, the completion of his studies has been delayed, and his longer term plans to stay in Australia have been affected (charge 5 - negligently causing serious injury).

9 At the scene of the accident, Mr Khoja said to a paramedic, 'I want to die. I should be the one who's dead.' He also said that he 'wanted to speak to his friend' and that they had 'told me to slow down'.

10 On 18 November 2010, Mr Khoja was formally interviewed. At that time, he sought to minimise his culpability. He said that the car had had a problem with its brakes when he drove it on the tram tracks and that, when he applied the brakes, the car had been travelling at 60 or 70 kmh. Both these statements were false. The car had been inspected on 4 October 2010, six weeks before the collision, and no mechanical defect was found. As noted earlier, the car was travelling at an estimated speed of 114 kmh.

11 Each of the grounds of appeal concerns an alleged specific error. There is no complaint of manifest excess. The first two grounds concern the expert psychological evidence called on Mr Khoja's behalf, and the applicability of the principles summarised in R v Verdins[2] in the light of that evidence.

12 In January 2012, Mr Khoja's doctor referred him to a psychologist, Ms Rebecca Sullivan, for treatment. On the plea, defence counsel relied on Ms Sullivan's report dated 1 October 2012. As at the date of that report, Mr Khoja had attended 19 counselling sessions with Ms Sullivan.

13 According to the report, Mr Khoja told Ms Sullivan that:

he hardly slept, as he had become fearful of sleeping due to frequent dreams of the accident;
he had memories and visions of the accident, including hearing the screams of his friends;
he often woke up sweating and crying, and was afraid to close his eyes;
he was spending approximately 20 hours per day in his bedroom with the curtains closed;
he felt unable to ride in a car because of his feelings of anxiety;
he saw images in his mind of the face of his deceased friend; and
he had become socially isolated and was experiencing frequent suicidal thoughts.

14 In Ms Sullivan's opinion, Mr Khoja presented with 'symptoms consistent with DSM IV criteria for Post-Traumatic Stress Disorder'. In her view, he presented with 'depressive symptoms that appear to be a reaction to the accident and subsequent changes in his life'. In her view, Mr Khoja would have 'significant difficulties coping with confinement'. Imprisonment would be likely to lead to an exacerbation of symptoms and a higher risk for self-harm. She noted that he had 'insight into the impact of the crime, expresses remorse about the event and he continually speaks about 'his strong desire to help others and making a positive contribution to society'.

15 The second expert report relied on was by Mr Ian Joblin, forensic psychologist dated 2 March 2012. In a report prepared at the request of Mr Khoja's solicitors, Mr Joblin recorded that at interview Mr Khoja was extremely distressed, and at times became openly tearful. Mr Joblin diagnosed 'an acute stress disorder'. This was indicated, Mr Joblin said, by 'the totality of the symptoms' which included:

his isolation;
his feelings that he was worthless and useless to the community and family;
his inability to sleep;
his feeling that he was a burden on his sister; and
particularly, his recollections of the sights and sounds of the accident including the screams of his friends.

16 Mr Joblin was careful to point out, however, that Mr Khoja was not suffering from any 'diagnosable psychological abnormality' at the time of the accident. The symptoms had developed solely as a result of the accident. The 'quite obvious acute depression' with which Mr Khoja now presented was a definable psychological abnormality, however, which would need to be monitored in custody, particularly as he had discussed suicide.

17 In Mr Joblin's opinion, there was 'strong evidence of contrition':

[T]here is no doubt that Mr Khoja is very conscious of the wrongness of his behaviour. He is able to indicate considerable sorrow for that. That is more in my opinion [than] simple sorrow or regret at having committed a crime because of the punishment it is about to bring. Rather it represents his awareness of the death of his friend and injuries to the others in the car.

18 In evidence before the sentencing judge, Mr Joblin said that Mr Khoja's depression was a symptom of his stress disorder. The disorder was acute rather than chronic, and was a response to the car crash. His Honour asked Mr Joblin where he would place Mr Khoja on 'the spectrum of response' to such events, between 'self-pity' at the one end and genuine sorrow, remorse and contrition at the other.

19 In Mr Joblin's opinion, Mr Khoja demonstrated both remorse and contrition, and his PTSD symptoms were a reflection of his appreciation of the wrongfulness of his actions:

[A]s I've indicated in the report, that awareness of the wrongness of his behaviour is more than just sorrow for the event, and it's more than just the fact that he's going to be in the County Court and potentially facing incarceration, so it must be more than that. And that must then define contrition. There are, in my opinion, two separate bases to define, contrition and remorse, under those conditions. Now, bringing it to this case I think this man is aware of the wrongness of his behaviour, and that's simply not an issue, he's very aware. The fact that he is depressed, the fact that he has symptoms of a post-traumatic stress disorder, in my opinion goes towards remorse, because it's an emotive issue, and it's an emotive issue to do with his awareness of the seriousness of the offending. If he wasn't so aware, then those symptoms perhaps wouldn't be present.

20 Under cross-examination by the prosecutor, Mr Joblin accepted that the stress symptoms might have increased as court dates (and potential incarceration) approached, and that the prospect of incarceration would 'absolutely' have contributed to his stress disorder. But 'the percentage of that and the percentage of his awareness of the wrongness of his behaviour or what he's done to families and the victims et cetera is not a matter that I can even have a [stab at]'.

General and specific deterrence: the relevance of post-offence psychological disturbance

21 On the plea, defence counsel submitted that, although Mr Khoja's psychological disorder had only developed since the accident, it should nevertheless result in a 'sensible moderation' of both general and specific deterrence. As to the former, it was submitted that Mr Khoja was:

someone who is wracked by nightmares; who has got genuine remorse; who sees again and again images in his head of what his friends have suffered.

Such a person, it was said, was 'less suitable to be made an example of to others, than someone who doesn't suffer that condition'.

22 After referring to the psychological evidence, the sentencing judge said:

In my view, your response is best categorised as a combination of shame and fear. It encompasses both an appreciation of how you have hurt the victims and your own family and includes the elements of uncertainty until sentence is imposed, and your fear of gaol.

It was submitted that both general and specific deterrence should be moderated or eliminated as a sentencing consideration because of the degree to which you currently suffer from an acute stress disorder. In my view, the nature and severity of the symptoms which Ms Sullivan and Mr Joblin have identified are more appropriately considered when assessing the burdensome nature of a term of imprisonment upon you rather than reflecting impaired mental functioning. This case is very different from Chien Trong Tran v The Queen [2012] VSCA 110 which was cited in argument. In that case the appellant had an acquired brain injury which caused him to function at a very low level and which was unlikely to improve. In your case the diagnosis of acute stress disorder is recent and closely attached to your scheduled court appearances. Your longer term prognosis is not known.[3]

23 The grounds of appeal contended that the judge had erred:

(a) in failing to moderate general deterrence as a sentencing consideration; and

(b) in failing to moderate or eliminate specific deterrence as a sentencing consideration,

due to the appellant's impaired mental functioning at the time of sentence.

24 On the appeal, counsel for Mr Khoja drew attention to the 2009 decision of R v RLP,[4] where this Court considered at some length the relevance for sentencing purposes of a mental condition which arises only after the offending. The Court enunciated the following propositions:

[M]oderation of general deterrence and specific deterrence may be required where a mental condition has supervened since the offending conduct ... if it is determined that by virtue of that illness or disorder the offender is not an appropriate vehicle for general deterrence.
[But] such a reduction may not be required however where the supervening condition arises because of the discovery of the offender's crime and the offender's reaction to the prospect of a lengthy term of imprisonment.[5]

25 As the Court there explained, general deterrence may need to be moderated if the supervening mental impairment means that the offender 'should not be used as an example to others', or makes the offender 'an unpersuasive vehicle for the deterrence of others in the sight of those others'.[6] The Court went on:

Where, as here, the offending conduct is the cause of the mental condition, [these] considerations ... do, to some extent fall away. ... That is because the offender is the author of his own predicament and may be viewed as an appropriate medium for making an example to others. The community would not expect the offender to be treated more leniently because he has had an adverse reaction to the discovery of his crimes and his fear of imprisonment.

... [In such a case] little or no moderation of general deterrence should be allowed in the instinctive synthesis.[7]

It was the discovery [of the offender's] crimes and the prospect that he was likely to spend most, if not all, of the rest of his life in imprisonment, that precipitated his severe depression and conversion disorder.[8]

Counsel submitted that the present case was distinguishable, as Mr Khoja's mental distress was only partly referable to the prospect of a lengthy term of imprisonment. His distress was also in part reflective of his own horror at the harm he had caused.

27 In our judgment, the sentencing judge was quite correct to conclude that the supervening condition in this case did not mean that general deterrence must be moderated. Such factual differences as there may be between this case and RLP do not affect the basic principle.

28 Put simply, at the time of this terrible accident Mr Khoja was suffering from no impairment of mental functioning. He was fully aware of his responsibilities as a driver, not least because his companions were urging him to drive safely. As a young man who was driving under the influence of alcohol, and with a complete lack of care, when he caused the death and the serious injuries, Mr Khoja is precisely the kind of person who may properly be treated as a vehicle for general deterrence in sentencing for this offence. Punishment of offenders is, of course, only one aspect of public education about the dangers of driving under the influence of alcohol. But courts have for many years emphasised the central importance of general deterrence in sentencing for offences of this kind.

29 Nothing which happened subsequently affects Mr Khoja's suitability as a vehicle for general deterrence.[9] As Priest JA pointed out during the hearing, an extreme psychological response of this kind is not unusual in such cases, nor is it surprising given the sheer horror of the consequences of culpable driving.[10] Adopting the language from RLP, the community would not expect Mr Khoja to be treated more leniently because of his reactive condition. He is 'the author of his own predicament'.

30 The same applies to specific deterrence. The sentencing judge was required to assess to what extent Mr Khoja's shame and remorse affected the need for specific deterrence. That is part of the conventional sentencing analysis.[11] By itself, however, the supervening stress disorder was not relevant to that task.

Does the offender's distress count as additional punishment?

31 The remaining ground contended that the judge fell into error in:

failing to take into account a relevant consideration in sentencing the [appellant], namely the additional punishment suffered by the [appellant] as a result of his offending (including his mental ill health and the loss of his close friend), as required by s 5(2)(db) of the Sentencing Act 1991 and the common law.

32 It is well established that an injury sustained by an offender during the course of committing a crime is a relevant consideration on sentence. Depending on the circumstances, the injury may be viewed as constituting part punishment in itself.[12] The Court in RLP accepted - as would we - that there is no basis in principle to distinguish between physical injury and mental illness for this purpose.[13]

33 As counsel for Mr Khoja properly acknowledged, however, the Court in RLP was not persuaded that the offender's supervening mental condition was to be treated 'as a form of punishment that entitles him to some reduction in the sentence he would otherwise receive'.[14] Counsel sought to distinguish RLP on the same basis as before. That is, Mr Khoja's mental infirmity was to be seen as having resulted, at least in part, from the commission of the offence itself.

34 We are not persuaded by that submission. Reactive mental illness of the kind in issue here is hardly ever likely to qualify as an injury of the relevant kind. There is no real difference between this case and RLP. The trigger for Mr Khoja's illness - as it was for the offender in RLP - was his own reaction to the enormity of his crime, namely, a combination of shame, guilt, embarrassment and remorse.

35 For completeness, we should point out that s 5(2)(db) would not in any event have been the applicable provision. As Priest JA also pointed out during argument, the correct provision is s 5(2)(g), which requires the Court to take into account 'the presence of any ... mitigating circumstance concerning the offender'.

[1] Paragraphs 5-10 are based on the Registrar's neutral summary.