Sadiq v The Queen [2016] VSCA 294

Reckless conduct endangering life [Crimes Act 1958 s 22]

10 years imprisonment [Crimes Act 1958 s 22 ]

Negligently causing serious injury [Crimes Act 1958 s 24]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 8 years and 6 months' imprisonment, with a non-parole period of 6 years

Other relevant orders: Licence disqualified for 4 years. Forensic Sample Order pursuant to s 464ZF of the Crimes Act 1958.

2 The applicant now seeks leave to appeal on the ground that the sentences imposed on charges 1 and 2, the order for cumulation, the total effective sentence, and the non-parole period fixed are each manifestly excessive.

3 On the afternoon of Sunday 28 September 2014 the applicant drove erratically, at high speed and under the influence of methylamphetamine over a significant distance on major arterial roads (charge 1). This culminated in the applicant entering an intersection against a red light and colliding with a vehicle, the driver of which suffered a serious injury (charge 2).

4 The driving the subject of charge 1 included the applicant performing a U-turn across the M11 freeway median strip at high speed, causing a driver to slow down to avoid collision; approaching a stationary car from behind at high speed, only to swerve at the last moment, narrowly avoiding collision; disregarding a red light signal; and swerving dangerously through traffic at speeds estimated by one witness to be in excess of 120 km/h in a 70 km/h zone. This conduct forced a number of drivers to take evasive action and caused a number of people to fear for their safety and the safety of others such that they felt compelled to call 000.

5 The victim of charge 2 suffered a left tibial plateau fracture that required surgery to fix the fracture with plates and screws. The victim then required two follow-up surgeries, as well as extensive rehabilitation. He suffers residual impairment and has been unable to resume the active lifestyle he once lead. He also continues to suffer flashbacks which cause great distress.

6 A blood sample taken from the applicant shortly after the collision revealed a mehylamphetamine level of ~0.34 mg/L, which, in the opinion of a senior forensic physician, was approximately 7.5 times the impairment based driving limit for methylamphetamine, and was consistent with the description of the applicant's driving.

7 The sentencing judge set out the circumstances of the offending. She observed that offending of this kind is, by its nature, serious. She characterised the applicant's driving as 'nothing short of outrageous'. The judge observed that the applicant showed 'blatant disregard for all other road users' and that he had endangered multiple lives.

8 The sentencing judge took into account a victim impact statement. In that statement the victim of the offence constituting charge 2 set out the physical and psychological impact of the collision. The judge observed that prior to the accident the victim could be described as having been an elite sportsman. As a result of his injury he has been unable to return to his sporting activities. The judge noted that the impacts on the victim were 'both substantial and ongoing' and that he would have 'long-term reminders' of the applicant's offending.

9 The sentencing judge referred to the applicant's personal circumstances. He was 34 at the time of sentencing. As a child and teenager he had been sexually abused by multiple perpetrators. He has a long history of drug addiction having first been introduced to cannabis as a child by his abusers. He has previously been diagnosed with drug-induced psychosis. He married in 2002 and has three children from that relationship. The sentencing judge set out the applicant's work history and noted that things had been moving in a positive direction in 2013 when the applicant was conducting his own business. She also noted that he had sought help in relation to his drug abuse over the years, however these efforts had not been successful in achieving long-term abstinence. At the time of the offending the applicant's marriage had broken down, he was living in unstable accommodation, and his drug use had increased.

10 The sentencing judge referred to a psychological report of Mr Bernard Healey and a psychiatric report of Dr Lester Walton that were tendered on the plea. The judge said:

[Mr Healey] says that you have developed a major adjustment disorder in response to the adverse experiences of your life. He says that verbal denigration and physical abuse, combined with sexual abuse, severely affected your emotional stability and capacity to cope within the community, and this itself resulted in increased substance abuse, which was of course the primary driver as regards your offending.

Mr Healey notes that personality testing was indicative of distressed, disturbed emotionality with moderate depression, anxiety, vulnerability to substance abuse, a mild paranoid trend, problems with authority and the onset of psychotic symptoms linked to the effects of drug abuse. This is all relevant to what needs to be achieved in terms of your rehabilitation.

[Dr Walton] opines that, very likely as a consequence of your sexual abuse, you have experienced chronic mood disturbance and engaged in substance abuse. He says your offending is best described as the effects of acute intoxication rather than drug-induced psychosis or any other mental disorder.

She noted that the applicant did not seek to rely on the application of Verdins principles.[1]

11 The judge referred to the applicant's criminal record and observed that he had a 'significant driving history'. This included driving whilst disqualified, failing to have proper control of a vehicle, driving under the influence of drugs, driving an unregistered vehicle, leaving the scene of an accident, and speeding. She observed that the applicant had been given 'numerous opportunities by the courts' however this had not spurred 'any meaningful rehabilitation' nor deterred the applicant from reoffending.

12 The judge considered the applicant's prospects of rehabilitation to be 'guarded' and largely dependent upon the applicant addressing the issues which underpin his substance abuse. She noted that this would be 'a difficult road, but the community must not lose hope'.

13 The judge referred to the sentencing discount to which the applicant was entitled by reason of his guilty plea. She referred to the utilitarian value of the plea and the fact that he had saved witnesses 'the ordeal of giving evidence'. She accepted that the plea showed 'some evidence of remorse'. She further observed that the applicant had indicated a desire to apologise to the victim and had expressed remorse during his interviews with professionals.

14 The judge noted that the applicant had been in custody since November 2015 in relation to separate offences he committed while on bail. She also referred to the harsh prison conditions he had experienced at times during his custody.

15 The judge held general deterrence to be of particular importance and concluded that specific deterrence must also be given weight in light of the applicant's history. She found the applicant's moral culpability to be 'at the high end of the range'.

16 Finally, the judge observed that 'the sentencing landscape' had changed following the decision of this court in Harrison[2] - there was to be an uplift in sentencing for the offence of negligently causing serious injury.

17 In the applicant's written case it is submitted that the individual sentences imposed, the order for cumulation, the total effective sentence and the non-parole period are manifestly excessive in that the sentencing judge accorded:

(a) insufficient weight to the applicant's early plea of guilty;

(b) insufficient weight to the applicant's cooperation with police;

(c) excessive weight to the applicant's previous criminal record and insufficient weight to the applicant's mental health issues;

(d) insufficient weight to the applicant's prospects of rehabilitation;

(e) insufficient weight to the principle of totality given the offending the subject of each charge was part of a continuing course of conduct;

(f) excessive weight to the victim's serious injury in directing cumulation of 2 years;

(g) insufficient weight to the principle of totality given the applicant was already serving a custodial sentence on other matters;

(h) insufficient weight to the principle of proportionality; and

(i) insufficient weight to the principle of parsimony.

18 The Crown submits that the sentencing judge carefully balanced matters in mitigation and aggravation.

19 With regard to the applicant's submission that the principle of totality required greater concurrency between the two charges, the Crown submits that while the two offences occurred as part of a continuing course of conduct, they were discrete episodes involving different victims in circumstances where the offending occurred over an extended period of time.

20 In response to the submission concerning totality and the custodial sentence on other matters, the Crown submits that the sentencing judge was entitled to give weight to the fact that the applicant had offended whilst on bail for these matters, given that any term of imprisonment imposed for offending committed while an offender is on bail carries a presumption of cumulation.[3]

21 The Crown contends that the sentence is within the range of current sentencing practice, especially having regard to the new sentencing landscape post-Harrison.

22 The decision of this Court in Harrison concerned offences of negligently causing serious injury by driving which are in the upper range of seriousness. A review of past cases involving that offence revealed that a perceived ceiling had developed in sentencing practice. No sentence was longer than 4 years' imprisonment, and the vast majority of sentences were between 3 and 4 years.[4] The Court observed that an increase in the maximum penalty in 2008 from 5 to 10 years' imprisonment had not led to a corresponding increase in the sentences actually imposed. The Court concluded that current sentencing practice was 'plainly inadequate' and that sentencing courts should not treat four years as a ceiling for this offence.[5] The Court expressed the view that a sentence of six or seven years for the individual offenders in that particular case would have been 'well within range, given the seriousness of the offending'.[6]

23 Cases coming before this Court following the decision in Harrison do reflect an uplift in sentencing practice.[7]

24 In light of Harrison, it cannot be reasonably argued that the sentence of 4 years 6 months' imprisonment imposed on the applicant in respect of charge 2 is manifestly excessive. As in Harrison, the applicant's conduct in this case was a serious example of negligently causing serious injury by driving. Driving whilst substantially drug affected, he entered an intersection against a red light, causing a collision which resulted in a serious injury.

25 His earlier conduct constituting charge 1 was also a serious example of the offence of reckless conduct endangering life. The sentencing judge accurately described it as follows:

Any offending of this type is, by its nature, serious, and the consequences are very real for members of our community. As drivers, we all owe each other a responsibility and we rely upon each other to discharge those obligations. In [the applicant's] case, [his] driving was nothing short of outrageous. [He] showed blatant disregard for all other road users and our community. [His] offending involved high speed, [he] was observed to be driving over a significant distance in an erratic, dangerous manner. Multiple road users were endangered over the course of [his] driving.

26 I do not consider it to be arguable that the sentence imposed on charge 1 was manifestly excessive, notwithstanding the matters relied upon in mitigation. It is not suggested that the sentencing judge overlooked any of those matters. The applicant's very complex, and sad, personal history made the judge's task a difficult one. But the applicant cannot succeed on the ground of manifest excess unless the court is persuaded that the sentence imposed is outside the range which was open to the sentencing judge. I do not consider it to be arguable that that conclusion should be reached in relation to the sentence of 4 years 6 months' imprisonment on charge 1.

27 As to cumulation, the two offences occurred on the same day and in the course of one extended course of conduct, but there were several separate incidents which occurred. The persons endangered by the driving the subject of charge 1 were separate from the person seriously injured in charge 2. There had to be some cumulation. I do not consider it to be arguable that the cumulation ordered was manifestly excessive, or that the total effective sentence thereby arrived at was manifestly excessive. The non-parole period fixed, being approximately 60% of the head sentence, is entirely unremarkable.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[2] Harrison v The Queen [2015] VSCA 349 ('Harrison').

[3] Sentencing Act 1991 s 16(3C).

[4] Harrison [2015] VSCA 349 [102], [105], [110].

[7] See Lima Da Costa Junior v The Queen [2016] VSCA 49; Halket v The Queen [2016] VSCA 221.