R v Shahi [2008] VSCA 281

Mr S Ward, Acting Solicitor for Public Prosecutions

2 I agree that leave should be granted to reinstate the application for leave to appeal against sentence, but in this matter I would refuse leave to appeal. I do so for the reasons given by Robson AJA. I also agree that the appeal by the Director of Public Prosecutions should be dismissed and again for the reasons given by his Honour.

3 On 4 September 2007, Mr Shahi, the respondent to the Director's appeal (and applicant in the application to cross-appeal) was sentenced to nine years' imprisonment for manslaughter, twelve months' imprisonment for threat to kill and twelve months' imprisonment for threat to inflict serious injury, each of the latter two being ordered to be served concurrently as to nine months with the nine years imposed for manslaughter. The effective head sentence was nine years and six months, and the sentencing judge set a non-parole period of six years.

4 The respondent had been charged with the murder of Xavier Salmon to which he pleaded not guilty and on which he was convicted of manslaughter. He pleaded guilty to the threat to kill his daughter and the threat to inflict serious injury to his wife.

5 The grounds of appeal pressed on behalf of the Director were:

(1) The sentences imposed on each count in total are each manifestly inadequate.

(2) The learned sentencing judge erred in reaching the following conclusion -

(b) that the respondent could not have known that because of the deceased's over-consumption of alcohol, he was a particularly vulnerable victim.

6 In counsel for the Director's oral submissions, he argues that there were two further sentencing errors made by the sentencing judge:

(1) The sentencing judge did not have proper regard to the increase in the maximum penalty for manslaughter from fifteen years to twenty years.

(2) The sentencing judge took into account in determining the sentences culpable driving cases.

7 The respondent also applied to have his application for leave to appeal against the sentence reinstated. The Director did not oppose the application to reinstate his application for leave to appeal. The sole ground of appeal is that the sentences were manifestly excessive.

8 The respondent also sought to raise another ground not contained in his application for leave to appeal. The respondent says that the sentencing judge had relied upon the wrong conversations in sentencing him on the counts of threat to kill and threat to inflict serious injury. Those two counts were based upon two telephone conversations made by the respondent on 18 March 2006: one at 11.30 am and the other at 12.45 am to his wife. The respondent also made two further telephone conversations on 20 March 2006. The sentencing judge had ruled that the conversations that took place on the second occasion, that is, 20 March 2006, could not be used as part of the Crown's case. The contents of those telephone conversations were therefore not led into evidence. On the other hand, the sentencing judge confused the two conversations of 20 March, which he had excluded from evidence, with the two conversations held on 18 March which the Crown alleged formed the basis of counts two and three, the threat to kill and the threat to inflict serious injury. He sentenced the respondent on what the respondent said in the 20 March conversations.

9 The Crown concedes that the sentencing judge mistakenly based his sentences on the 20 March 2006 conversations.

10 On 6 December 2005, shortly after midnight, the respondent was driving a Mercedes maxi taxi for an employer/owner. He had been driving taxis for some four to five years. He picked up eleven passengers, six male, five female, in Elizabeth Street, near Flinders Street in the Melbourne CBD. All eleven were aged in their late teens. Xavier Salmon was one of the eleven. They asked to be taken to Port Melbourne. Almost as soon as they were in the taxi, the respondent realised that one passenger was smoking a cigarette. In reaction to the smoking passenger, he told the passengers to get out of the taxi. The respondent relented when he was told they were sorry and would not smoke. A number of the young men, including Xavier Salmon, were adversely affected by the alcohol they had consumed. More than one of them were drinking in the taxi and had beer stubbies in their hands. The respondent had little choice but to put up with their rowdiness.

11 After driving down Williamstown Road, the respondent turned south into Centre Avenue, Port Melbourne. He stopped at a bus stop for his passengers to alight. One of the young men remained in the cab to pay the fare as the respondent sat in the driver's seat. As that was taking place, Xavier Salmon and another one of the young men started abusing the respondent. They urged the passenger who was paying not to pay the respondent. Instead of ignoring the abuse, the respondent chose to trade abuse with those abusing him. He continued to shout at them and they at him as he drove off. He turned right twice to bring him north-bound in Centre Avenue. He chose to continue the exchange of abuse. The passengers threw stubbies at his taxi. At the northern end of Centre Avenue, he was faced with a choice as to which way to drive. There was conflicting evidence as to which way he drove. Some witnesses said that he drove into the curved road that put him in line to return to Williamstown Road. The respondent claims that he did not do so, but mistakenly turned right. He said he was unable to turn left, as his way was blocked by one of the passengers who was harassing him, and then he found himself having to drive south again down Centre Avenue where he had previously driven down to let the passengers out.

12 Once he was travelling south down Centre Avenue, he was heading towards Xavier Salmon. He had been shouting abuse at the respondent and had aroused his anger. A short time later, the respondent found him standing in front of his taxi. He was one to two metres out from the kerb. Mr Salmon chose not to move out of the respondent's path. The respondent chose not to swerve to avoid him. The respondent chose to accelerate, not to brake. He struck him with the left front of the taxi. Mr Salmon was knocked to the ground, hitting his head. The respondent did not stop and drove away from the scene. A short time later, he went to the Melbourne East Police Station. There, he reported damage to the taxi only. After a short time talking about the damage, he mentioned that he may have hit someone. He was arrested and interviewed and later remanded in custody. Mr Salmon was taken to hospital but died the next morning.

13 In early March 2006, the respondent was being held at the Port Phillip Prison. From there, he was able to make telephone calls. At the start of such calls, he and the person to whom the calls were made were informed that such calls were being recorded. On 18 March 2006, the respondent made at least three calls to a number where he believed he could speak to his mother. In the course of the three calls, he spoke mainly with his mother, but also with his wife. He had entered into an arranged marriage in India in February 2005. He lived with his wife for about a month and in November 2005 a daughter was born to his wife, Kiran.

14 His mother came to Australia from India in early February 2006. The respondent's wife arrived here with Kiran from India on 17 March 2006. Subsequent to his arrest, he had been concerned about his wife coming to Melbourne. Her arrival and certain things that his wife then said and did upset the respondent's mother. In turn, the stress exhibited by the respondent's mother led to him becoming highly stressed. The stressful context helps to explain but not to excuse the vitriolic things that he said to his wife during the 18 March telephone calls. The first call was 11.30 am During the phone call, the respondent was first of all talking to his mother. His mother said she would put his wife on the line. He told his mother 'I'm going to abuse her. I'm telling you beforehand.' He said to his wife 'I don't want to talk to you. Give the phone to mum. Is that clear? Whosoever has sent you and asked you to come, stay with that person. Do not talk to me. Understand or not?' He said: 'I am going to put the phone down. Give the phone to mum. I do not want to talk to you people, give the phone to mum. Will you? I do not want to talk to you people. Don't you understand? I told you once, don't you understand, I told you before that I do not want to keep you. I mean that. The matter is finished. Okay.' Later, he said: 'Hello I do not want to talk to anybody.' Then his wife said: 'Kiran, it's papa on phone.' Then he said: 'Will you give the phone to mum, I'm going to put the phone down.' That concluded the conversation.

15 The second conversation took place at 12.45 pm. Again after a lengthy conversation with his mother, his wife was put on the telephone. The respondent said: 'If you want to stay then fuck your mother. Do you understand? I have no link with you. Nothing. Okay. I come out or not, what I need to do or not, I don't have to tell you. I don't want to stay with you. You can talk to whomsoever or if you want me to talk to whomsoever, whatever you want to do, whatsoever you want to fuck off, do so. Okay. Hello, Ya!' After a lot of further verbal abuse directed at his wife, the respondent said: 'Fuck off your mother on the way, understand. If you come in front of me, I'll tear you off right from the middle. I tell you. I'll come. You can tear me off. I'll see you then. I'll see you, understand! Neither you nor your daughter! Not any of you. I'll kill the daughter. I'm saying it truthfully.' This constitutes count 2: the threat to kill Kiran Shahi (the daughter).

16 He said: 'I told your father that I'll hang you up with the fan and let him hear your scream. I told you and your father.' Further on, the respondent says: 'This was the mistake, Mum forced me OK. I don't want to see your face - you the daughter of a motherfucker. I'll eat you up I, I am telling you truthfully OK, understand: like you ... don't make me upset. I don't want to talk to you OK. I do not want to stay with you or with your daughter, bitch. She is dead for me, understand ... she is like dead. Understand!' This constitutes count 3: the threat to inflict serious injury on Amandeep Shahi (his wife).

17 The respondent told his mother in the same conversation that he was not going to apply for bail as long as his wife remains in Australia. He begged his mother to send his wife back to India. Later on he said to his wife: 'Okay. As long as you're here, I am not going to apply for the bail. Remember this and now you see where you need to stay till then.' At 3.05 he said: 'Until you go from here I'm not going to apply for bail. Just remember that.' The respondent pleaded guilty to counts 2 and 3.

18 The respondent was born in March 1977 in India. He was the youngest of four children. His father was a lawyer, who died when he was aged twelve. The respondent's mother is still alive. The respondent was raised in Calcutta and received a university education there. He graduated with a commerce degree and two diplomas in computer science, for the second of which he studied in Melbourne in 2000 and 2001. The respondent started driving taxis in his first year here and continued to do so. He worked hard and saved well. He sent money back to his family in India. He bought some land in Epping and was in the process of building a home there. He had no problems with alcohol or drugs. He had no prior convictions.

19 The consulting psychologist who saw the respondent, Mr Ian Joblin, was of the opinion that he had no psychiatric problem or personality disorder. He pressed the respondent as to matters relating to his motivation for acting as he did on the night of 6 December without concluding that there were racial or other intolerance factors at work or that there were likely to be ongoing difficulties.

20 What were the respondent's intentions? The sentencing judge made two critical findings of fact. First, he decided that the jury was not satisfied beyond reasonable doubt that the respondent drove into the curved road. The implication of that finding was the rejection of the Crown case that he drove into the curved road, then doubled back, so to speak, to intentionally drive down Centre Avenue to confront the abusing passengers. The respondent's case was that he was seeking to escape from the abusing passengers and was prevented from doing so by turning left at the top of Centre Avenue and was forced south down Centre Avenue on the same route he took when he originally dropped off the passengers and then came upon Mr Salmon.

21 The second important factor that the sentencing judge found was that the respondent expected Mr Salmon to move out of the way when he drove towards him. In other words, he found that the respondent had no intention of running over Mr Salmon. During the sentencing plea, the Crown asserted that the respondent intended 'to run over someone.'[1] The Crown also said that he 'made the decision to go and run over this young man [Mr Salmon].'[2] Nevertheless, on the appeal before us, the Crown conceded that the respondent did not intend to strike Mr Salmon.

The function of the court on an appeal against sentence

22 The function of this Court on an appeal against sentence by the Director was confirmed in R v Clarke[3] where Charles JA, with whom Winneke P and Hayne JA agreed, relevantly for the purposes of this appeal, said:

It is important, however, in the application of these principles, to bear in mind what King CJ said in R v Osenkowski (1982) 30 SASR 212 at 212-3: "[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."[4]

23 I shall deal with ground 1, the manifest inadequacy ground, below.

24 Ground 2(b) of the appeal contends that the learned sentencing judge erred in reaching the conclusion that the respondent could not have known that because of Mr Salmon's over-consumption of alcohol, he was a particularly vulnerable victim. Counsel for the Director said that the respondent was aware of the inebriated state of Mr Salmon. The respondent said in his record of interview with the police that he was not aware which of the passengers he struck. Mr Trapnell said that, nevertheless, he was aware that all the passengers were inebriated. In fact, Mr Salmon had a blood alcohol content of 0.24 and was described at the trial as being paralytic. The learned sentencing judge dealt with this issue as follows:

A car can be a very dangerous, indeed formidable, weapon when driven unlawfully. That is even more so when the driver is emotionally stressed. At the critical time, you not only failed to brake, you accelerated. I accept that you could not have known that, because of his over-consumption of alcohol, Xavier Salmon was a particularly vulnerable victim. Nevertheless, you made a series of seriously wrong choices in your driving. No driver should ever drive towards a pedestrian, even at a slow speed, on the basis that the pedestrian will move out of the way. The jury was not prepared to accept that you were acting in self-defence, and that was scarcely surprising in the circumstances.[5]

25 In my opinion, the sentencing judge did not err in finding that the respondent could not have known that, because of Mr Salmon's over-consumption of alcohol, he was a particularly vulnerable victim. He knew that the passengers had been drinking, but there was no evidence to suggest that he knew that Xavier Salmon had a blood alcohol content of the order 0.24, had been taking LSD or was 'paralytic'. There was no reason why the respondent would not have expected Mr Salmon to take a backward step to avoid being hit by the taxi. I reject ground 2(b) of the appeal.

26 The Director alleges that there were two further errors that the sentencing judge made in the sentencing process.

27 First, the Director says that the sentencing judge did not have proper regard to the increase in the maximum penalty for manslaughter from fifteen years to twenty years. During the sentencing plea, the sentencing judge was informed that the maximum penalty for manslaughter was twenty years' imprisonment. Further, the Crown made submissions that sentences for manslaughter had been rising over recent years. Counsel for the Crown pointed out that those rises dated from the raising of the maximum sentence for manslaughter in 1997 from fifteen years to twenty years. The Crown said:

It took a while for those sentences to start rising and indeed there has been some comments made about that in the Court of Appeal. But nevertheless there is still this vast range that exists.[6]

28 I am of the opinion that the sentencing judge did have proper regard to the increase in the maximum penalty. The matter was debated before him in some detail and he was expressly referred to the fact that sentences had gone up as a consequence of the increase in the maximum sentence. I reject this ground of appeal.

29 The second error that the sentencing judge was said to have made was to take into account culpable driving cases. The Director submits that the case before the sentencing judge was considerably more serious than the crime of culpable driving. I do not see any problem in discussing culpable driving in seeking to ascertain an appropriate sentence. The sentencing judge was most experienced and he was well aware of the difference between the two offences. I reject this ground of appeal.

30 Ground 1 of the appeal is that the sentences on each count and in total are each manifestly inadequate.

31 The sentencing judge gave careful and proper consideration to the nine victim impact statements and the terrible impact the tragic death of Mr Salmon has had on his parents and friends. He took into account the respondent's anger and his callousness in leaving the scene of the accident. He took into account that he saw Mr Salmon in front of his taxi, that Mr Salmon chose not to move out of the respondent's path, that the respondent chose not to swerve to avoid Mr Salmon but accelerated rather than braked, that he expected Mr Salmon to move out of the way and that he did not intend to strike him.

32 He said that there were several mitigating considerations that he must allow for. He pointed out that the respondent had no prior convictions. He also pointed out that at an early stage the respondent offered to plead guilty to manslaughter but that offer was rejected. He had shown remorse. He pointed out that prison would be harder for him than for most. He said the respondent was suffering from depression. Further, he only received visits occasionally. He said that, given the respondent's lack of prior convictions and his good education, the prospects of rehabilitation are high, although taxi driving will not be, or at least is not likely to be an option for him. He said the respondent had those good prospects reflected in a somewhat lower non-parole period. No criticism was made of the sentencing judge in taking those factors into account.

33 In my opinion, the sentence for manslaughter was not manifestly inadequate. Had the respondent deliberately back-tracked on leaving the area to confront the abusing passengers and had he intended to run over Mr Salmon, then the sentencing would have been entirely different. The sentencing judge sentenced the respondent on the basis that he did not intend to run over Mr Salmon and did not put himself in a position deliberately to confront Mr Salmon. In those circumstances and in view of all the other mitigating factors, I do not consider the sentence of nine years manifestly inadequate. It was within the acceptable range of sentences. It may have been at the lower end of that range, but as indicated in R v Clarke,[7] that does not warrant this Court imposing a different sentence. The sentence is not so disproportionate to the seriousness of the crime as to shock the public conscience. I reject this ground of appeal. The appeal should be dismissed.

34 The respondent pleaded guilty to the threat counts. There is little substance to them. The counts may just be supported by the facts, but the threats were slight. The respondent made it quite clear that he did not want to leave gaol until his wife left Australia. Therefore, the risk of injury to the wife and daughter would have been slim. Nevertheless, the threats would have caused concern and fear to Mrs Shahi. I do not believe, however, that a different sentence should have been passed.

Application by Mr Shahi for leave to appeal to be reinstated

35 I do not believe that the sentence was manifestly excessive. On the contrary, I believe that it was well within the acceptable range. Accordingly, I would give the applicant leave to reinstate his application for leave to appeal against sentence and I would refuse leave to appeal.

[3] [1996] VICSC 30; (1996) 2 VR 520.

[5] DPP v Shahi [2007] VSC 317, [10]

[7] [1996] VICSC 30; (1996) 2 VR 520, 522.