R v Yusuf [2006] VSCA 178

1 After a trial in the County Court occupying five days, the jury found the applicant guilty on one count of culpable driving causing death (count 1) and one count of negligently causing serious injury (count 2), contrary to the provisions of ss.318 and 24 of the Crimes Act 1958. The form of culpability alleged in count 1 was criminal negligence: see s.318(2)(b) and (3). The maximum custodial penalties for those offences are 20 years' and 5 years' imprisonment respectively. It has often been observed that the latter maximum is too low. It is out of kilter with the maximum penalties for related offences and, in some cases, inhibits the courts from doing justice.

2 No previous convictions or findings of guilt were alleged, but there was subsequent offending. In August 2003, the applicant was charged with driving offences and theft of a motor vehicle, for which he received a community-based order. In November 2004, he received another community-based order arising from a fight between two groups of young men in April 2002.

3 Following a plea for leniency, the learned trial judge sentenced the applicant to six years' imprisonment on count 1 and three years' imprisonment on count 2. His Honour directed that one year of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, resulting in a total effective sentence of seven years' imprisonment. A non-parole period of four-and-a-half years was fixed, a declaration made regarding four days' pre-sentence detention and an order made cancelling any driver licence that the applicant might hold and disqualifying him for a period of five years. At the time of the offences he did not in fact hold a driver licence and the vehicle he was driving was both unregistered and unroadworthy.

4 The applicant sought leave to appeal against sentence on the sole ground that the sentences imposed on each count, the total effective sentence and the non-parole period were manifestly excessive. A single judge of appeal refused leave on 3rd February 2006, but the applicant elected, pursuant to s.582 of the Crimes Act, to have his application determined by the Court of Appeal.

5 The full statement of grounds elaborates on the original ground as follows:

"1. The sentence imposed on each of the two counts of which the applicant was convicted and the non-parole period fixed are manifestly excessive in all the circumstances.

2. The sentencing judge erred in ordering a period of cumulation of the sentence of count 2 on the sentence imposed on count 1 that was manifestly excessive.

3. The sentencing judge erred in failing to place any weight, or sufficient weight, upon the applicant's personal circumstances.

4. The sentencing judge erred in failing to place any weight, or sufficient weight, upon the applicant's medical and psychological conditions."

6 The circumstances of the offending are not in dispute. On 26th June 2003, the applicant and a number of friends, including Francis Athuai and Machut Majak, attended the home of a man referred to as "Darko", which was quite close to the place where the accident occurred. A good deal of alcohol was consumed, although how much of that was consumed by the applicant is unclear. There was a suggestion in some of the evidence that everyone present had had a substantial amount to drink. Towards the end of the evening the applicant left to go to another place. He said to one or two people that he intended to visit his girlfriend in Dandenong, but there was some evidence suggesting that he may have gone elsewhere. In any event, he left and returned to Darko's premises at approximately 5 a.m. At that stage he was visibly affected by alcohol and he told some of those in the house that he had drunk quite a lot whilst he had been away.

7 There was no evidence before the jury of a blood alcohol test. On the evidence as a whole, however, the applicant was displaying signs of having consumed a good deal of alcohol, to the extent that some suggestion was made by those present that someone other than the applicant should drive when they all left together in his car. The applicant rejected that suggestion, saying that it was his vehicle and, whether he had been drinking or not, no one else was going to drive it. Despite their concern, six other people got into the vehicle with him. It was not a large vehicle and it was completely filled. There were two passengers in the front seat, Mr Athuai and Mr Majak. To the interviewing police later and through counsel at the trial, the applicant said that he had no recollection of getting into the car or who was the driver. That may be explained by the head injury that he sustained, but five prosecution witnesses gave evidence that the applicant was the driver and there was no evidence to the contrary.

8 It was only a short distance from Darko's home to the place where the accident occurred, but over that short distance the car was driven in a manner that caused a great deal of alarm to the passengers, who told the applicant to slow down. It was said by one of them that he narrowly avoided an accident before reaching Sunshine Road and, once there, the vehicle travelled only a short way to the point of impact. Its speed attracted the attention of other road users. There were a number of estimates, most of them in excess of 100 kilometres per hour. The evidence of Mr Bellion, the police investigator, was to the effect that the vehicle was travelling at a minimum speed of about 96 kilometres an hour at the time of the accident, which was 7.45 a.m.

9 Prior thereto, and for no apparent reason, the applicant attempted to pass a vehicle travelling in the same direction in front of him. The driver of that vehicle described the alarm that he felt when he suddenly became aware of the proximity of the applicant's vehicle as it passed on his right. He stated that the applicant passed when it was obviously unsafe to do so and then suddenly cut back in front of his vehicle, so that he had to apply his brakes in order to avoid a collision. The applicant's car moved across to the left-hand side of the roadway, striking the gutter and causing him to lose control. It then slid sideways for a considerable distance before colliding with a pole in the area of the front passenger door. Mr Athuai was the person sitting right next to that door. He died instantly. The vehicle broke in two. All four back seat passengers travelled with that part of the car, further west in Sunshine Road. Fortunately, none of them was injured. Mr Majak, who was seated next to Mr Athuai in the centre of the front seat, sustained very significant injuries to his hip and legs, including multiple fractures. The applicant sustained injuries that included a closed head injury.

10 In answer to a question from the Bench about grounds 3 and 4, Mr Hughan conceded that the fundamental contention was one of manifest excess. Those grounds were not intended to convey that the judge had fallen into specific error. Rather, the contention was that his Honour had undervalued mitigatory factors that were said to arise from the applicant's background and medical and psychological conditions.

11 He had been born in the Sudan of a German father and a Sudanese mother, so that he has never been fully accepted in any community. The psychological report in evidence on the plea recorded a history of his mother having abused him as a "half caste" and meting out harsh corporal punishment. Relations between his parents were unstable and he moved to Australia just before his 17th birthday. Although he came to this country at the invitation of an uncle, he soon found himself living an itinerant existence until he obtained assistance and shelter from the Sunshine Youth Housing Group. He suffers from reduced intellectual capacity, such that 95% of people his age would do better. He also has a speech impediment and is unable to read or write. When Mr Healey assessed him twelve months after the offences, personality testing indicated significant depression and elements of anxiety, paranoia and hypermania. It was not, however, submitted, either on the plea or in this Court, that they contributed to the commission of the offences.

12 The gravamen of counsel's submission was that this was not just a young man, but a severely disadvantaged young man. His Honour had given insufficient weight to those factors, so the submission proceeded, and did not refer, for example, to the applicant's mother's verbal and physical aggression or to his not being part of any relevant community. Reliance was placed on R. v. Bux[1]. The applicant in that case was more intellectually disadvantaged than the present applicant, but that does not detract from the statement of principle. There was still room to moderate general deterrence and it is noteworthy that, perhaps for that reason, the learned judge did not refer to general deterrence in the course of his sentencing remarks. I am not persuaded that his Honour failed to give real weight to that aspect of the applicant's personal circumstances. Moreover, as Batt, J.A. pointed out in R. v. Bux[2], even though deterrence fell to be moderated in that case, the protection of the community assumed correspondingly greater importance.

13 The applicant is not to be punished twice for his other offending, but it is part of the mix of circumstances that the judge was bound, and that we are bound, to take into account. It bears, for example, on his prospects of rehabilitation. Similarly, he is not to be punished for going to trial, but, unlike many offenders, he is not entitled to a discount for pleading guilty or co-operating with the authorities.

14 Mr Hughan also sought to argue that the applicant's problems with alcohol from a very early age were to some extent mitigatory. I accept that they are part of his disadvantaged background. He began drinking alcohol under family influence, but little weight can be given to this factor, let alone sufficient weight to displace the sentencing discretion that was exercised below. Counsel also referred to other physical injuries that the applicant had sustained and submitted that his background and general circumstances not only reduced his moral culpability but also made a sentence of imprisonment more burdensome than it would be for others. Running through all these submissions, and not to be forgotten, was the aspect of the applicant's youth. He was 20 at the time of the accident and 22 at the time of sentence.

15 Reference was also made to other cases, with a view to sustaining the proposition that the sentence on count 1 or the sentence on count 2 or both were outside the range. Most of the cases cited were Crown appeals and all of them involved pleas of guilty. In some of them the sentences were described by this Court as either moderate or lenient. In any event, as has been said on other occasions, sentences are not precedents to be distinguished. They establish a range and evidence sentencing practice. It may be accepted, I think, that the sentence on count 2 was severe by comparison with other sentences, but I am not persuaded that it was outside the range, given Mr Majak's injuries and the absence of any mitigation of penalty following a plea of guilty.

16 It is unnecessary to refer in any detail to the submissions on behalf of the respondent. We did not call on Mr Ryan, but we had received and read an outline prepared by other senior counsel. It properly emphasised the seriousness of the offending, which will be apparent from my earlier description of the circumstances of the offences. Mr Ryan's predecessor correctly submitted that stern sentences must usually be imposed in cases like this, but that is not, as he also submitted, to deter drivers from abusing "a privilege conferred upon them by the State". Driving a car, like consuming alcohol, is not a privilege; it is a freedom that the State regulates. It is unnecessary to consider whether that regulation is exclusively for the benefit of others or partly for the benefit of the drivers and consumers themselves. It may be that it is best regarded as for the protection of the community of which the drivers and consumers form part. Be that as it may, the distinction between a privilege conferred by the State and a freedom that the State regulates is important in the kind of society in which we have the good fortune to live. In fairness to Mr Ryan, I record that he did not adopt that part of the Crown outline.

17 As I explained earlier in these reasons, the ultimate question is whether any part of the disposition below was manifestly excessive. It is not enough that one or other member of this Court would have imposed a shorter sentence or sentences or a shorter non-parole period, or that the sympathies of one or other member of this Court are more engaged, or engaged in a different way, from the manner in which the case appeared to the sentencing judge. As the High Court and this Court have often emphasised, the primary responsibility for sentencing is confided to the judge at first instance. If the disposition is within the range and there is no specific error, it is the duty of this Court to hold its hand.

18 In the present case, at least so far as count 1 is concerned, we have a bad example of a serious offence: a young man who is told not to drive but insists on doing so, who is told to slow down but does not, who engages in a show of bravado that leads to the loss of a life and serious injury to another of his friends. Mr Hughan correctly conceded that some cumulation was in order, but that too emphasises that the real issue is manifest excess. The applicant's disadvantaged background is to be taken into account, together with his personal circumstances, and especially his youth and intellectual deficit, but I do not think we can say that his Honour was bound to moderate the head sentences more than he did. The non-parole period of four-and-a-half years was deliberately fixed with a view to providing the applicant with a reasonable period of supervision on parole.

19 For these reasons I would refuse the application.

20 Although the sentences imposed on the applicant for these serious offences could not be described as lenient, the applicant has failed to demonstrate that they should be regarded as manifestly excessive. The applicant had exhibited no remorse for his conduct. At the trial he had disputed that he was the driver of the vehicle, or that he had been drinking. The evidence, which was accepted by the learned sentencing judge, was that he had been told in no uncertain terms by his friends that he was not fit to drive his vehicle. The applicant was driving an unregistered and unroadworthy vehicle. He held no licence to drive such a vehicle. His driving was, as the learned sentencing judge found, appalling. The applicant's intellectual limitations and his disadvantaged background, and the fact that prison will undoubtedly be more burdensome for him, are all circumstances that could not fail to engender sympathy, but these factors led the sentencing judge to impose a shorter non-parole period than he otherwise would have. It is of some significance that, both on the plea and before this Court, it was not submitted that the applicant's subjective circumstances contributed to the applicant's offending.

21 I would join in the order that the application should be refused, for the reasons given by the learned presiding judge.

22 I agree, for the reasons advanced by the learned presiding judge, that this application should be refused.

23 The order of the Court is:

Application refused.

[1] [2002] VSCA 126; (2002) 132 A.Crim.R. 395, particularly at 402 [32]-[40].

[2] At 395 [1].