Sadiq v The Queen [2017] VSCA 64

2 Sadiq is unrepresented. This application initially came on for hearing before us on 24 February 2017. Sadiq sought an adjournment on the basis that he had some prospects of obtaining legal representation. He had been legally represented in the application before Whelan JA which had been determined 'on the papers'. A comprehensive written case in support of his application had been prepared by counsel assisted by a firm of solicitors. However, Sadiq sought an oral hearing of his application before two judges and was no longer legally represented, although his written case remained before the Court. The Crown did not oppose an adjournment. In those circumstances, we granted an adjournment and fixed the matter for hearing on 22 March 2017. The Court told Sadiq unequivocally that the matter would proceed on 22 March 2017 and that no further adjournments would be granted.

3 On 22 March 2017 the application returned before the Court. Sadiq sought a further adjournment. He informed the Court that he had contacted numerous law firms and Victoria Legal Aid and very recently one law firm had responded positively. However, there was no representative from the law firm in Court and no documentation of any kind to support the prospect that the law firm might give Sadiq some assistance. The Crown opposed a further adjournment. In those circumstances, the Court refused to grant a further adjournment and the matter proceeded. Principal among our reasons for refusing a further adjournment was the fact that the Court had before it - as did the judge who initially refused leave - the comprehensive written case drawn by counsel, which fully articulated such arguments as could sensibly have been agitated in support of Sadiq's application.

4 Sadiq addressed the Court extensively and proved himself to be an articulate and intelligent advocate.

5 On 25 May 2016 Sadiq pleaded guilty in the County Court of Victoria to one charge of reckless conduct endangering life contrary to s 22 of the Crimes Act 1958 and one charge of negligently causing serious injury (by driving) contrary to s 24 of the Crimes Act. On 26 July 2016 he was sentenced as follows:

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.

6 The application for leave to appeal is based on the sole 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 having regard to:

(i) his early plea of guilty, which he says demonstrated remorse and acceptance of responsibility, as well as the utilitarian value of avoiding a trial;

(ii) his assistance by cooperating in attending a record of interview;

(iii) his history of sexual abuse and introduction to illicit drug use at the age of eight, and the mental health issues arising from both of those factors;

(b) the objective aspects of the offending, given that:

(i) the offending represented a single course of conduct;

(ii) both instances of offending occurred within a short, unbroken period of time;

(iii) the circumstances of charge 2 (negligently causing serious injury) are a manifestation of the conduct forming the basis of charge 1 (reckless conduct endangering life);

(iv) the judge gave insufficient weight to principles of totality, proportionality and parsimony, leading to disproportionate individual sentences, total effective sentence and non-parole period.

7 In our opinion leave to appeal should be refused.

The circumstances of the offending - 'blatant disregard for the community'

8 The events giving rise to the two charges occurred on the afternoon of Sunday 28 September 2014 in the area of Mordialloc and Moorabbin, when Sadiq engaged in driving at high speed 'over a significant distance in an erratic, dangerous manner'[2] while under the influence of methyl-amphetamine. The sentencing judge described Sadiq's conduct as 'nothing short of outrageous' and demonstrating a 'blatant disregard for all other road users and our community'.[3]

9 A witness described Sadiq driving his van south down the Mornington Peninsula Freeway (M11) and then suddenly executing a U-turn at speed across the median strip and onto the northbound lane, causing another driver to slow down to avoid a collision, before Sadiq turned left through a red light to enter Wells Road. The witness later observed Sadiq swerving dangerously through traffic at high speed and entering the roundabout leading to White Street, Mordialloc. That witness called 000 to report the driving.

10 Another witness who was stationary in her car at the Boundary Road and Governor Road roundabout in Mordialloc described Sadiq driving towards the rear of her car at high speed, and only swerving at the last moment to enter the intersection, narrowly missing her and then another vehicle, to then travel along Boundary Road to the intersection with White Street, where he went through a red light, swerved around a stationary car in the left hand lane and turned left into White Street. That witness also called 000.

11 One witness estimated that Sadiq was driving in excess of 120 km/h in a 70 km zone and 'out of control and all over the road', while another witness saw Sadiq driving 'considerably faster than his vehicle' weaving through traffic without indicating for a distance of about 1.5 km.

12 Sadiq's dangerous driving culminated in a collision with another vehicle at or near the T intersection of South Road and Taylor Street in Moorabbin, when Sadiq went through another red light at speed and struck the front driver's side of the victim's vehicle. This occurred with such force that one witness observed Sadiq's van becoming airborne, bouncing off the lights at the intersection, and then spinning, striking another car. The incident was captured on CCTV which was viewed by the sentencing judge. We have also viewed the CCTV footage.

13 In his victim impact statement, the victim described his car as being full of smoke and he panicked because he could not initially open the car door. He thought he was going to die. He suffered a serious tibial plateau fracture to his left leg which required immediate surgical intervention, rehabilitation, and then two bouts of further surgical intervention and extensive rehabilitation. He is now burdened with residual impairment. The judge described the impact of the collision on the victim in the following terms:

His fracture ... impacts upon all aspects of his life. He has clearly suffered significantly, both in terms of physical pain and in restriction as regards his activities. These circumstances have understandably had a psychological impact. He has been informed that he has a high potential for osteoarthritis. He continues to suffer flashbacks. Before the collision, the victim would properly be described as an elite sportsman. He has been unable to return to any of his prior activities in that regard. He noted that even playing with his children was impossible for a significant period of time. What is clear is that the impacts are both substantial and ongoing. He will have long-term reminders of your offending.[4]

14 A blood sample taken from Sadiq about 80 minutes after the collision returned a blood level of ~0.34 mg/L of methyl-amphetamine. Dr Odell, Senior Forensic Physician at the Victorian Institute of Forensic Medicine, said this was a high level, being about 7.5 times the impairment based driving limit for this drug, and Sadiq's driving was consistent with what would be expected from a person so intoxicated.[5] This is supported by the opinion of Dr Walton who said, in a psychiatric report dated 15 July 2016, that it 'would seem that Mr Sadiq was in a methamphetamine-addled frame of mind at the time of the index offending and that is mainly a drug-related rather than mental illness phenomenon as such'.

15 When interviewed Sadiq said he had no memory of the driving or collision and did not admit drug use.[6] At the hearing before this Court Sadiq stated that he had no memory of having done a U-turn when driving and emphasised that he had not been smoking methamphetamine on the day of the offending.

16 In our opinion, it is not reasonably arguable that the sentences imposed on charges 1 and 2, the order for cumulation, the total effective sentence, and the non-parole period are manifestly excessive. They are within the range of sentencing options available. Sadiq has failed to establish the stringent requirement that it was not reasonably open to the judge to come to the sentencing conclusion which she did, and that proper weight was not given to all the relevant circumstances of the case, including his circumstances.[7] It is apparent from the judge's reasons that Sadiq's plea of guilty earned him a substantial 'discount' of his sentence.

17 Turning to the specific factors raised by Sadiq, the judge clearly had regard to his plea of guilty and the utilitarian value of that course. She said:

I take into account your plea of guilty, which you entered at a directions hearing at this court, the matter having proceeded by way of straight hand-up brief at the Magistrates' Court with no witness being required for cross-examination. You have clearly saved the community the time and expense of a trial, and you have saved the witnesses the ordeal of giving evidence. I accept that your plea should be used as some evidence of remorse, albeit that the case was really overwhelming against you. The reality is you have expressed remorse at interview to professionals and, further, you have indicated a desire to apologise to the victim.[8]

18 At the hearing before this Court Sadiq emphasised that he understood the extent of the harm he had caused the victim of the collision. He also emphasised that his desire to apologise was genuine but had been frustrated by matters beyond his control.

19 The judge's remarks which we have extracted above[9] demonstrate that her Honour took into account that Sadiq expressed remorse, was apologetic with respect to the victim of the collision and that he showed some readiness to co-operate with the investigating and prosecuting authorities, although, as the judge noted during the plea, Sadiq was not willing to acknowledge that he was affected by drugs at the time of the offending.

20 The judge was correct in her approach to Sadiq's criminal history and the underlying mental health issues. We consider that the weight she gave to that criminal history was entirely appropriate. Sadiq's prior convictions include driving while authorisation suspended, failing to have proper control of a vehicle, and using an unregistered vehicle. These matters were clearly relevant to Sadiq's prospects of rehabilitation, specific deterrence and community protection. His other prior convictions include unlawful assault, possessing a dangerous article in a public place, possessing a controlled weapon without excuse and recklessly causing injury, possessing ecstasy, criminal damage, contravening family violence orders, assaulting police, and trafficking cannabis. In addition there are numerous instances of Sadiq having failed to comply with community based orders, intensive correction orders, and failing to answer bail.

21 Sadiq complains that the judge should have given greater weight to his history of mental health issues when arriving at the length of sentence. However, this Court has clearly held that a mental disorder does not lessen an offender's moral culpability; that is, a mental disorder cannot be regarded as a mitigating factor on the basis that it explains an offender's recourse to drugs. This was made plain in Johnston v The Queen[10] where Redlich JA, with whom Priest JA and Robson AJA agreed, said:

Where offending occurs in circumstances where the offender was affected by drugs or alcohol, his substance abuse is not generally to be regarded as a factor in mitigation. Circumstances must be quite exceptional before the effect of drugs or alcohol at the time of offending can mitigate the offender's moral culpability. ... Where an offender suffers from a mental disorder, the disorder is not to be treated as a mitigating factor because it explains the offender's recourse to drugs.[11]

22 Sadiq's counsel on the plea expressly disavowed reliance on the principles enunciated in R v Verdins.[12] It was not argued that Sadiq's mental history moderates or eliminates either general or specific deterrence, or that the sentence may weigh more heavily on him, or have a significant adverse effect on his mental health. Indeed, Dr Walton stated that Sadiq's 'offending is best described as the effects of acute intoxication rather than drug-induced psychosis or any other mental disorder'.[13]

23 Counsel on the plea contended that although the Verdins principles had no part to play, the judge should have regard to Sadiq's background, history and mental health issues. The judge did just that, setting out in her sentencing reasons the sexual abuse Sadiq suffered as a child from two relatives and his introduction to cannabis at that point, further sexual abuse at the hands of another relative and later at school, his use of heroin and amphetamines, and then of ice.[14] She also referred to the opinion of Mr Bernard Healey, a clinical psychologist who examined Sadiq, in the following terms:

He says that you 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.[15]

24 There is nothing in the judge's treatment of this material, or the sentence she then imposed, that would suggest that her sentencing discretion miscarried in a manner that shows that something has gone obviously, plainly or badly wrong; on the contrary, it seems to us that the sentences imposed were unremarkable and plainly within range.

25 We are further of the opinion that there is no substance to Sadiq's complaint that the judge gave insufficient weight to his positive rehabilitative efforts. The judge acknowledged Sadiq's efforts at establishing a fencing business and the upturn in his life in about 2013, his purchase of a truck and commencement of his courier business, his attempts to seek help with his drug abuse over the years, the offer of work in steel fixing on his eventual release, and the ongoing support of his sister. Nonetheless, it is clear that he has struggled to turn his life around; indeed, he engaged in further offending while he was on bail for these charges and that bail was revoked on 26 November 2016. The judge was not only correct in expressing her assessment of his prospects of rehabilitation, but merciful. She said to Sadiq:

In my view, your prospects of rehabilitation are guarded and largely dependent upon you addressing the issues which underpin your substance abuse, and then maintaining total abstinence. Given your history, I suspect that this will be a difficult road, but the community must not lose hope. You are still a relatively young man, and the reality is that you will be released into our community and your rehabilitation is not only in your interest but those of the community as a whole.[16]

26 Before this Court Sadiq showed that he has insight into the connection between his drug use and his criminal offending. He recognised that if he is to have a constructive and fruitful life in the future, he must remain drug-free. He has taken concrete steps in prison to participate in drug and alcohol education programs. He handed to the Court a certificate that verifies that by 7 March 2017 he had completed an Accredited Driver Education Program that explained the way in which alcohol and drugs adversely affect a person's capacity to drive.

27 We consider that the judge was entirely correct to infer that Sadiq's prospects of rehabilitation are largely dependent upon him addressing the issues that underpin his substance abuse and the need for him to abstain from alcohol and drugs. We share the view that his prospects of rehabilitation are guarded and linked to him successfully putting behind him his previous drug abuse.

28 During the course of the plea the judge referred to the need for some moderation on the sentences for the two charges so that cumulation could be achieved without offending the principle of totality given those charges arose from a continuing course of conduct. It was apparent that although the two offences occurred within the course of one extended episode, there were discrete considerations to be taken into account, charge 1 reflecting the fact that Sadiq had placed other road users at risk of death, in circumstances where by his plea of guilty he accepted that he had foreseen that risk, and charge 2 taking account of the serious injury that Sadiq had caused the victim. With respect to charge 2, the observations of this Court in Lima Da Costa v The Queen[17] are appropriate, namely:

It is especially serious that the collision occurred after a sustained period of driving at life-threatening speeds, during which the applicant must have realised that sooner or later he would encounter cars or pedestrians ....[18]

29 In our opinion, both the individual sentences and the order for cumulation were appropriate given that Sadiq's erratic and dangerous driving was for an extended period and that he also seriously injured the victim.

30 There is a need to bear in mind the seriousness of the collision with the victim's vehicle, and the injuries he suffered. While the victim's injury and its consequences are in relative terms not at the upper end of the scale for the offence of negligently causing serious injury - the judge on the plea agreed that the victim's injury was not 'catastrophic' - this was nonetheless a significant serious injury. The judge was not constrained by the sentences reflected in the cases annexed to the judgment in Harrison v The Queen.[19] Rather, her Honour was correct in appreciating that in Harrison the Court of Appeal recognised that the current sentencing practice at that time for the offence of negligently causing serious injury, by driving, for offending at the mid-category of seriousness, or above, was inadequate and required uplifting. The judge was correct in observing that a proper application of Harrison meant that there should be a gradual increase in sentencing practice. Indeed, the circumstances of this case are another example of the terrible consequences that can occur by reason of a person driving while in an impaired drug-induced state. In our view, a sentence of 4 years and 6 months' imprisonment on charge 2 was not outside the range open to the judge.

31 Nor do we think that the total effective sentence can be characterised as crushing or disproportionate. It was open to the judge to find that Sadiq's moral culpability was high, as she did when she remarked:

In my view, your moral culpability is nevertheless at the high end of the range. You were seriously drug-affected, you have a significant driving history, you were driving at high speed, numerous people were endangered, there was a significant length of journey over which other road users were exposed to risk, you were ignoring traffic control signals, other drivers were being forced to take evasive action, and ultimately the extent of injuries suffered by the victim were significant and ongoing.[20]

32 In our opinion, there is here no reasonably arguable ground of appeal.

33 Furthermore, and in any event, even if the ground of appeal was reasonably arguable, we consider that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.[21]

34 Leave to appeal against sentence should be refused.

[1] Sadiq v The Queen [2016] VSCA 294.

[2] DPP v Sadiq (Unreported, County Court of Victoria, Judge Hannan, 26 July 2016) ('Sentencing reasons') [5].

[7] Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[10] [2013] VSCA 362.

[12] [2007] VSCA 102; (2007) 16 VR 269.

[17] (2016) 74 MVR 489 (Maxwell P, Redlich and Priest JJA).

[19] (2015) 74 MVR 58, 88-95 (Table 1), 87 [140] ('Harrison').

[21] See Criminal Procedure Act s 280(1)(a).