R v Nazeer [2005] VSCA 81

"10. Notwithstanding a report by Mr Joblin, Exhibit 2, that the prisoner does not suffer psychiatric illness or psychological disorder, I believe that the prisoner is of an hysteric disposition, in which he will self-indulgently create and maintain passion. He worked himself into a passion against Hillemacher, and when the opportunity presented itself, by Hillemacher getting out of his car, acted out that passion by driving at him.

11. Realising afterwards the enormity of what he had done, he attempted to hide the car. When the police seized it, he attempted to escape punishment by voluntarily surrendering himself, in anticipation of inevitable arrest, and working up a pretended passion of remorse and shame, remorse and shame in fact inconsistent with his description of the alleged accident, and exaggerated as a reaction to failing to stop and render assistance.

12 Accordingly, whilst I think the decision to run down Hillemacher was made not in murderous cold blood, but in the heat of sudden temptation, the capacity of the prisoner to engender in himself passions of this order represents a significant danger to the community. It should receive attention before, and after, his release from prison."

I have omitted the last two sentences of the paragraph.

8 Although the notice of intention to apply to add ground 6 was only given recently, it was foreshadowed to the single judge who granted leave. Had the application been made promptly it would have been granted. The judge directed that any such application be made within 14 days, but the appellant was then unrepresented. I think the application should be granted now.

9 Before turning to counsel's submissions, I shall say something briefly about the circumstances of the offences. The victim of count 2, Naomi Mahon, had been in a de facto relationship with the appellant. They had a child in 1998, but the relationship was volatile and ended not long afterwards. She obtained an intervention order against him in May 2000. The victim of the other count, Anton Hillemacher, was a friend of Ms Mahon. On 25th March 2002 they went to the ANZ Bank in Chapel Street, Prahran. As they alighted from their car, the appellant drove past and shouted at Ms Mahon. Later, while she was waiting for Mr Hillemacher on the footpath outside the bank, the appellant approached her and punched her in the face with his fist, causing her mouth to bleed and loosening some of her teeth.

10 Mr Hillemacher drove Ms Mahon to the dentist, where she received treatment for her teeth. (They later required four months' treatment by splinting.) After they left the dentist they drove back to Chapel Street. The appellant observed them and followed them in his own car. Passengers in his car described him as swearing and cursing at Mr Hillemacher, who he believed had replaced him in Ms Mahon's affections. Mr Hillemacher and Ms Mahon alighted from their car at the Duke of Wellington Hotel near Inkerman Street. The appellant reversed into a space on the left of the road and made a remark such as, "Fuck this. I should run over the cunt". He then deliberately drove his car into Mr Hillemacher at about 45 kilometres per hour, when the victim was standing in the road beside his car. The appellant then drove into Inkerman Street and fled the scene. His passengers left him at Moorabbin and reported the incident to the police. Later that night the appellant went to St Kilda police station and admitted that he had been involved in the collision. He asserted that it was an accident and that he had fled the scene in panic. He presented himself as tearfully remorseful for failing to stop and assist.

11 Mr Hillemacher was taken to hospital in a critical condition. He had suffered a severe closed head injury, fractures to the skull in three places, fractures to three facial bones and other injuries. He was unconscious for ten days. His memory has been severely affected. He will never again be able to work in his former employment. He will need to find a job that is structured, repetitive, involves low pressure and is easy to learn. His condition places him at a severe disadvantage in daily living, emotionally and in the formation and maintenance of relationships. As he said in his victim impact statement, "There is no doubt I have been given a life sentence."

12 Mr Boyce argued grounds 1, 2, 3, 4 and part of 5 first. He submitted that the sentence on count 3, the total effective sentence and the non-parole period were all manifestly excessive, because, he contended, they offended the principle of totality and failed to reflect the appellant's pleas of guilty to counts 4, 5 and 6, his remorse, the rehabilitation he had achieved whilst on remand and on bail in the period of almost two years between the commission of the offences and passing of sentence, and his prospects of further reform, having regard, importantly, to the support that he has been given by his family. Counsel conceded, however, as he was bound to do, that the late pleas of guilty to counts 4, 5 and 6 were of little, if any, utilitarian value. To my mind, they were little more than a recognition, at a late stage, of the inevitable. He still went to trial and the jury were satisfied beyond reasonable doubt that he intended to inflict serious injury on Mr Hillemacher. Further, Mr Boyce submitted, there should have been a greater gap between the total effective sentence and the non-parole period, particularly in the light of the judge's view that the appellant has an hysterical disposition that represents a significant danger to the community. In the course of developing those submissions Mr Boyce pointed out that the offences were to some degree situational, having regard to the breakdown in the appellant's relationship with Ms Mahon.

13 That was a matter to which he returned in his further submissions on ground 5 and his submissions on ground 6. He began those submissions by referring to the paragraphs of the sentencing remarks that I have set out, to the judge's reference to Tadgell, J.A.'s judgment in Coleman's case and to his Honour's observation that the behaviour of the appellant would seem to be in pari delicto. He submitted that paragraphs [10] to [12] showed that the judge had assumed the role of a forensic psychologist, rejecting the views of Mr Joblin and substituting his own views on a question that should have been the subject of expert evidence. It would have been open to his Honour, counsel submitted, to call for a further report, but that was not done. I shall say more about this submission later, but two things should be said at once. Hysteria is not a mental illness, but a description of a particular kind of personality. His Honour's assessment was canvassed with counsel on the plea and he was not asked to obtain a further report. Mr Boyce submitted that the judge's equating this case with Coleman's case was another factor, in addition to the description of the appellant as an hysteric, showing that too much reliance had been placed on the need to protect the community from the appellant. Coleman had displayed indiscriminate and wanton violence towards total strangers in a series of road rage incidents. He was, at the time of the offences, on parole for manslaughter. He pleaded not guilty to all charges. In his case, it was submitted, protection of the community was a matter of special importance. Here, by contrast, it was said that the danger had been to Ms Mahon and her friend rather than to the public at large and that that danger had abated having regard to the reformation that the appellant had achieved and the evidence given on the plea concerning his present feelings towards Ms Mahon.

14 I shall not refer to all Ms Carlin's submissions, but I wish to refer to some of them. In response to Mr Boyce's references to remorse, she reminded us of the appellant's conduct in his interview with the police. Prior to being confronted with the allegations, the appellant gave his own account of what had allegedly occurred, in essence saying that a total stranger had just stepped into the path of his car. When the allegations were put to him, he denied punching Ms Mahon, or even seeing her that day. He admitted running into Mr Hillemacher with his car but continued to say that it was a complete accident. He maintained his denials when confronted with the observations of his passengers. Towards the end of the interview he expressed remorse, but not remorse for the offences of which he was found guilty by the jury. Turning to another aspect of the case, Ms Carlin acknowledged that the appellant had achieved a measure of reform and rehabilitation since the offences, but, she submitted, his previous convictions, his limited remorse and his failure properly to acknowledge his crimes weighed on the opposite side of the scales. The offences, particularly the offence the subject of count 3, were serious and called for a substantial period of imprisonment. At least part of the delay between the commission of the offences and the time of sentence had been brought about as a result of the appellant's initially contesting the matter. Ms Carlin submitted that the delay was not such as to entitle him to any significant discount, if indeed he was entitled to a discount at all. Both general and specific deterrence were important and the orders for cumulation were properly made. She referred to the observations on general deterrence in Coleman's case.[3]

15 I have already said a little about ground 6, but there are two other things that should be said about it. First, it was the subject of observation by the single judge who granted leave to appeal. I agree with his Honour's provisional view when he heard that application, namely that some of the contentions advanced under cover of ground 6 deny to a very experienced sentencing judge, as this judge was, the right to make appropriate use of his experience and, it might be thought, overlook the fact that the judge had seen a trial conducted and therefore had the opportunity to weigh the opinions expressed in Mr Joblin's report. Those opinions had been expressed at the time of a bail application and not against the reality of the events as they transpired at the trial, where the judge was able to observe the behaviour of all those involved in the case before him and to make observations in the course of sentencing against that background. Secondly, his Honour's assessment of the appellant's character and personality was not based only on the matters referred to in paragraphs [10] to [12] of the sentencing remarks. In the immediately preceding paragraph he had referred to another occasion, on which the appellant had run towards Mr Hillemacher, yelling and waving his arms and causing Mr Hillemacher to punch him to the ground. The judge expressly listed that occasion among the factors relevant to assessing the appellant's personality. Later in his sentencing remarks he observed that the previous convictions were relevant for that purpose too. His Honour might have added that, four days before these offences, there had been another incident in which the appellant accelerated his car towards Mr Hillemacher in an apparent endeavour to run him down. That evidence was not led before the jury, but it was mentioned in the course of the plea.

16 Coleman's antecedents were worse than the appellant's and the injuries inflicted were even more serious than those inflicted on Mr Hillemacher, but Coleman received a discounted sentence of six years' imprisonment, on a Crown appeal, for recklessly, not intentionally, causing serious injury. It may not have been strictly correct to say that they were in pari delicto, but there were sufficient similarities in the facts to explain his Honour's remark. In particular, in both cases, as he said in the course of the plea, a motor car was used as a weapon. I would not uphold the grounds relating to the judge's assessment of the appellant's character and personality or the argument relating to Coleman's case.

17 Everything else comes down to manifest excess, which, it has often been said, admits of little argument. In my opinion the sentence on count 3, although stern, was within the range. No complaint is made about the other sentences. The measure of cumulation was moderate. A shorter non-parole period might have been justified, but it was open to his Honour to consider that six years was the minimum period that justice required the appellant to serve.[4]

18 For these reasons, I would dismiss the appeal.

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Judgment (14 paragraphs)

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