//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] VSCA 158
Court of Appeal (Vic)
2009-06-26
VINCENT, NEAVE JJA and COGHLAN AJA
Original judgment source is linked above.
R v Mohamed (Unreported, County Court of Victoria, Judge Gucciardo, 8 April 2009
Criminal law - Failing to stop after an accident - Circumstances surrounding commission of offence - DPP v Josefski [2005] VSCA 265; (2005) 158 A Crim R 185 - - Post traumatic stress disorder - Sentencing error established - Insufficient weight accorded to evidence of psychiatrist - Insufficient weight accorded to the plea of guilty - Appeal allowed - New sentence imposed.
1 I have read the draft reasons of Coghlan AJA and agree with his honour.
2 I also agree that the application for leave to appeal should be granted, and the appeal allowed, for the reasons given by Coghlan AJA.
3 On 10 June 2009 the applicant was granted leave to appeal. The appeal was treated as heard instanter and the sentence of the court below was set aside. In lieu thereof the Court reimposed the sentence of 20 months, the service of 14 months of which was suspended for 2 years from 8 April 2009.
4 We indicated pursuant to s6AAA of the Sentencing Act 1991 that had the applicant not pleaded guilty, we would have regarded a sentence of imprisonment of 30 months with a non parole period of 18 months as appropriate in the circumstances.
5 It was declared that the period of 64 days which included 10 June 2009, had been served under the sentence then imposed and we directed that the declaration and its detail be recorded in the records of the Court.
6 We indicated on 10 June 2009 that we would publish our reasons and we do so now.
7 The applicant, Omar Mohamed, pleaded guilty in the County Court to one count of failing to stop after an accident in which a person had been killed on 19 March 2009. On 8 April 2009 he was sentenced to be imprisoned for 20 months and eight months of that sentence was suspended for 18 months and his licence was suspended for four years.
8 By Notice dated 9 April 2009 he sought leave to appeal against the sentence.
9 Pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 2008 a full statement of the grounds of appeal was filed on 15 May 2009.
Full statement of Grounds of Appeal Against sentence
Ground 1: The learned judge erred in mistaking the position of the Crown in relation to sentence; in particular, his Honour understood the Crown to be submitting that, whilst imprisonment was required, 'a period of suspension is within the range of sentences' (T 62-63[48]) whereas the Crown's position was that a wholly suspended sentence was open (T 26-27, 45-46 & 50-51).
Ground 2: The learned judge erred in failing sufficiently or at all to moderate the weight to be accorded to moral culpability, denunciation and general deterrence in view of the opinions of Dr Pickles (T 58[31], 59[34] & 61[43]-62[44]).
Ground 3: The learned judge erred in failing to give a sufficient sentencing discount for the applicant's early plea of guilty (T 62[48]).
Ground 4: The head sentence and the period of custody immediately to be served are both manifestly excessive, particularly in view of the following matters:
11 The applicant is 34 years of age and was born on 29 October 1974. He has no prior convictions. The maximum penalty for the offence is 10 years' imprisonment.
12 At about 3.15am on Saturday, 3 November 2007 the applicant was driving a taxi east in Brunswick. He had passed over the Upfield railway line and was approaching Sydney Road. As he approached the intersection he ran over Leon Miles who for some reasons, never adequately explained, was prone on the roadway. A taxi driven by Louis Baki had just missed the deceased. Mr Baki did a 'U'-turn to get back to protect the deceased but unfortunately the car driven by the applicant passed over him. It had only one headlight operating.
13 The witnesses who saw the deceased said that the movement of the car over him was really noticeable and pronounced. The applicant did not brake or swerve.
14 There is no doubt that the applicant knew that he ran somebody over. He was described as stopping about 30 metres away for less than half a minute and then drove off slowly. He did get out of his vehicle although there was some debate about that on the plea. Another taxi driver who had been behind the applicant took down his registration number.
15 Various people nearby rushed to give assistance to the deceased but their efforts and the efforts of paramedics and doctors at the Royal Melbourne Hospital were to no avail and Mr Miles died as a result of his injuries.
16 The deceased had a blood alcohol reading of .23% which might go some way to explain what happened. He was aged 34 and an engineer by occupation He was employed by Oxfam Australia to work in sanitation and water purity in the Pacific, Asia and Africa. He was due to go to Madagascar for work within a few days.
17 Gabrielle Halcrow, his partner for five and a half years, has been devastated by his death. Other members of the deceased's immediate family are also distraught as a result of their loss. In such circumstances grief is exacerbated by the fact that the applicant did not stop. Since this particular offence contains the requisite element of the death of a person, the circumstances are therefore relevant in assessing the seriousness of the particular offending. It must, however, be born in mind that what falls to be punished is the failure to stop.[1] In some cases where careful steps are taken to disguise what has happened and the truth does not emerge for an extended period of time the ongoing consequence will be great.[2]
18 It goes without saying that because there is nothing in this sentence which goes to the driving or the actual cause of death cases such as this are very unsatisfactory from the point of view of the victims, but the law can only punish the conduct the particular offence prohibits or otherwise makes criminal.
Ground 1: The learned judge erred in mistaking the position of the Crown in relation to sentence; in particular, his Honour understood the Crown to be submitting that, whilst imprisonment was required, 'a period of suspension is within the range of sentences' (T 62-63[48]) whereas the Crown's position was that a wholly suspended sentence was open (T 26-27, 45-46 & 50-51).
19 The question of the Crown position on sentence was discussed at some length on the plea but it was made perfectly clear in submissions[3] that the prosecution accepted that a fully suspended sentence was within the range. The prosecution pressed, however, that it was a matter for his Honour. The slightly infelicitous words used by his Honour[4] do seem to suggest that the prosecution concession was only for a partially suspended sentence. I do not see how that 'error', if it be an error, can vitiate sentence. The prosecution was emphatic that whether or not the sentence was to be wholly suspended was a matter for his Honour.
Ground 2: The learned judge erred in failing sufficiently or at all to moderate the weight to be accorded to moral culpability, denunciation and general deterrence in view of the opinions of Dr Pickles (T 58[31], 59[34] & 61[43]-62[44]).
Ground 3: The learned judge erred in failing to give a sufficient sentencing discount for the applicant's early plea of guilty (T 62[48]).
20 It is convenient to deal with these two grounds together.
21 It is important to set out what his Honour said about the issues, including Dr Pickles' report.[5]
As a graduate of Victoria University you have tutored Somalian students for some three years without remuneration and this too is an indication not just of your capacity to contribute positively to the community but to your sense of duty.
It is unfortunate indeed that on the night of 3rd of November 2007 that sense of responsibility and that capacity, was not the main motivator in your behaviour. A curriculum vitae which was tendered on your behalf, together with the relevant certificates of your academic accomplishments, simply highlights the incongruity of this breach of the law. You have included in your skills , the capacity to make critical assessments and other skills in a professional context. Though clearly this was not the context in which the offence took place, the assessment of your position on this night and failure to stop was one which carried high moral culpability and it is seen by ordinary, right thinking people, as unacceptable and abhorrent. Despite the fact that Dr Miles' own behaviour took him into fatal danger and created the conditions for such a tragic accident, your flight from the scene must be denounced by the court as criminal conduct.
...
Dr Margaret Pickles, a trans-cultural psychiatrist of great experience and outstanding credentials and qualification has written a report about you. She has been a consultant psychiatrist at St Vincent's hospital for 30 years and has had considerable experience of treating patients from different social, religious and cultural backgrounds, particularly migrants from the most troubled areas of the world. She has lectured at the University of Melbourne for 30 years and has delivered many papers internationally and locally and has published broadly. Her expertise is unquestioned.
She has reported that you have been extremely upset about the night in question. The chronic post traumatic stress disorder which you have lived with since your time in Somalia has been, in effect, reactivated, she says, and is now acute and will no doubt require careful treatment and monitoring. Her opinion is that the sight of blood triggered an acute relapse which prompted a 'reactive dissociative behaviour of panic and fear'. She writes that in Somalia the attitude to accidents is to run away or otherwise be severely beaten.
In the context of the period of your permanence in this country and involvement with the taxi industry, it would appear reasonable that you are aware that such responses are not part of the Australian experience. You are an intelligent man, steady in personality and generally responsible in attitude but I accept that there may be a cultural component to your reaction. I take this aspect into consideration as part of your circumstances when arriving at an appropriate sentence.
22 Dr Pickles, whose evidence was unchallenged on the plea, in her report said:[6]
In answer to your questions:
He is extremely upset about what happened and he has insomnia and flashbacks to the accident and to events in Somalia. He has Post-traumatic Stress Disorder, chronic from Somalia but reactivated by the accident and the flashbacks are now acute. This needs treating. I have taught him a cognitive blocking technique to assist him there.
He does come from a difficult culture. There has been a lengthy civil war in Somalia and many people have been murdered and/or raped. The attitude to accidents there is to run away, or otherwise you are severely beaten. The accident triggered a relapse of his Post-traumatic Stress. The trigger here was the sight of blood. (There are five triggers for Post-traumatic stress: what you see, what you hear, what you touch, what you taste, and what you smell). Speaking clinically, it is possible for a person to partially subdue bad memories and flashbacks when coming out of a war zone but it only requires small triggers to cause an acute relapse. Here, the acute trigger was the sight of blood.
He reacted with fear and his behaviour was probably 'automatism' for the rest of the night. It is clear from what he told me that he 'split' and was in an acute dissociative state after the accident. From what he tells me, he reacted with panic and ran away.
23 It seems to us that what Dr Pickles says in her report goes a good deal further than what his Honour said in his remarks. The guarded criticism of the behaviour of the applicant in paragraph [43] of the sentence does not fit well with that evidence.
24 Although in paragraph [46] of the sentence his Honour fairly summarises some of her findings, in [47] he gives those findings almost no weight, particularly as they relate to the post-traumatic stress disorder suffered by the applicant. His Honour dealt with the whole issue as a 'cultural component to your reaction'.
25 The maximum sentence for this offence was specifically increased to 10 years following the publicity which arose out of DPP v Josefski.[7] That case featured a very serious example of this offence.
26 The circumstances surrounding the commission of this offence will vary greatly. On the plea it was never alleged that the applicant was guilty of some offence connected to the death of the victim from which he was seeking to escape. Mr Gyorffy for the crown did suggest that it was possible that the applicant might have been guilty of the crime of dangerous driving causing death based on reasoning that Mr Baki had avoided the deceased lying on the roadway. We do not think such an offence was open on the material but more importantly, as already observed, the case was not put that way on appeal.
27 This offence will be aggravated when there is evidence showing that an accused had failed to stop because of matters connected with the quality of the driving or the state of the driver, see R v Harding[8] where previous convictions and delay in finding the driver and the steps taken to prevent apprehension. In this case no such circumstances existed.
28 In addition Harding was not a case of blind panic. This was a case where a genuine reason for not stopping was advanced. That reason was not challenged by the prosecution. It was clearly put on the plea, and supported by the report of Dr Pickles, that the applicant left the scene because of the re-emergence of his post traumatic stress disorder. It will be an unusual case where such a positive explanation is advanced. A case where a driver reasonably feared his or her physical safety might be another.
29 In those circumstances we are satisfied that specific sentencing error exists in that insufficient weight was given to the evidence of Dr Pickles in combination with the weight to be accorded to the plea of guilty. In the circumstances these were features which went not to the sufficiency of the head sentence imposed but to the length and the period of suspension.
30 The applicant was thereafter resentenced in accordance with our order of 10 June 2009.
31 In relation to the question of what weight is to be given to the plea, it was arguable that the applicant may well have raised the possible defence that he did stop and the secondary defence that his leaving the scene was 'automaton'. He did not seek to rely on either of these as possible defences which in my mind adds weight to the plea.
32 I am not impressed by the argument that the discount on the plea only represents 23 per cent as a percentage discount, particularly when regard is had to the fact that the applicant must be released under the current sentence after 12 months. No question of executive action arises. In considering a head sentence of 20 months, all that can be said is the applicant might be called upon to serve all of it.
Ground 4: The head sentence and the period of custody immediately to be served are both manifestly excessive, particularly in view of the following matters:
33 I am satisfied that the sentence imposed was within the range for the conduct alleged. I have not treated the immediate custodial portion of the sentence as going to this question.
34 I would grant leave to the applicant and allow the appeal.
35 I would re-sentence the applicant to be imprisoned for 20 months and suspend all but two months of that sentence.
[1] R v Raymond Harding [2008] VSCA 124, (Lasry AJA) [24].
[2] DPP v Josefski [2005] VSCA 265; (2005) 158 A Crim R 185.
[5] Sentence [42]-[43], [45]-[47].
[6] Report of Dr Margaret Pickles dated 7 March, 2009.
R
Mohamed [2009] VSCA 158