Sahhitanandan v The Queen [2019] VSCA 115

1 On 15 May 2018, the appellant pleaded guilty to one charge of dangerous driving causing serious injury.[1] On 18 July 2018 he also pleaded guilty to a summary charge of driving while disqualified.[2] He was sentenced to a term of 2 years and 3 months' imprisonment on the first charge and two months on the summary charge, with one month to be served cumulatively on the first sentence. The total effective sentence was therefore 2 years and 4 months' imprisonment. The judge fixed a non-parole period of 1 year and 6 months.

2 The judge declared pre-sentence detention in the amount of 166 days. The principal question in the appeal concerns the manner in which the judge addressed the fact that the appellant had been in immigration detention for a period of approximately 17 months before bail was revoked and the appellant was remanded in custody, at the conclusion of a plea hearing conducted on 18 July 2018.

3 On 25 October 2016, a friend of the appellant, Kidnapillai Kandipan, drove the appellant's Toyota HiAce van to an area of parkland in Dandenong West. The passengers in the van were the appellant and two females. Those in the van spent time in the parkland drinking alcohol and the appellant became intoxicated. Subsequently an argument broke out within the group and the appellant decided to leave. For that purpose, despite having been disqualified from driving for 12 months on 15 February 2016, the appellant got into the van and turned on the ignition. He then reversed the van at a fast speed. One of those in the group, Katherine Sweeney, was standing about a metre to the rear of the van. As the van was moving towards her she put up her arms in a defensive motion to protect herself from the impact. The van struck Ms Sweeney, causing her to fall to the ground and go under the van. The van then stopped reversing and proceeded to travel forwards while Ms Sweeney was underneath it. The van stopped and travelled backwards in an arc before driving off.

4 Ms Sweeney suffered multiple injuries as a result of the appellant's driving, including two collapsed/punctured lungs, a fracture to the left clavicle, which was also misplaced, a scapular fracture, 20 broken ribs with multiple fractures, spinal injury from vertebrae C7-C11 which caused disc spacing, and multiple vertebral fractures. She was taken to hospital and placed in a coma. She had to utilise breathing apparatus for several weeks and then underwent a long period of rehabilitation. Ms Sweeney can walk for only short distances and can stand for only a few minutes at a time. She has significant residual scarring.

5 The appellant's van at the time had a dirty rear window and side mirrors and his visibility as he reversed was restricted. The Crown case was that his state of mind both as he reversed and as he drove forward was one of gross indifference to the presence of Ms Sweeney behind his van and that his driving paid no regard or attention either to her presence or to her safety and welfare. As such, his driving carried with it a high risk of serious injury which was in fact caused.

6 After the appellant drove the van out of the parkland area, Mr Kandipan telephoned him to tell him that Ms Sweeney had been run over and was still on the ground. The appellant told him not to worry about it and did not return to the area to provide any assistance to Ms Sweeney.

7 The appellant was 35 years of age at the time of the offending. He was born in Sri Lanka and arrived in Australia as an asylum seeker in 2012. He was granted a bridging visa. He had hoped that his wife and three children would be able to join him in Australia, but his wife decided to remain in Sri Lanka and the marriage broke down. The appellant then began to drink heavily. A psychologist assessed him as suffering from a major depressive disorder which predated his offending.

8 On 15 February 2016, the appellant was convicted in the Dandenong Magistrates' Court of having driven a motor vehicle while in excess of the prescribed concentration of alcohol, unlicensed driving, failing to stop after an accident and failing to render assistance to a person injured in that accident. He was fined $800 and, as already mentioned, was disqualified from driving for 12 months.

9 The sentencing judge set out the circumstances of the offending and described the injuries to the victim and the subsequent police investigation, before turning to the seriousness of the offending. He found that the offending was objectively serious and was to be placed in 'the mid to upper level of seriousness for this type of conduct' without falling into the 'worst category of this type of offence'.[3] There was some doubt in the evidence as to the effect upon Ms Sweeney of another car having passed over her while she lay on the ground after being hit by the appellant's van. The judge found that the evidence did not allow him to be sufficiently certain that the appellant's conduct had caused all of her injuries. However, he found that the appellant's actions had caused catastrophic injuries to Ms Sweeney and that it was unnecessary to apportion precisely the injuries caused by either vehicle. It was sufficient to say that, but for the appellant's van striking and running over Ms Sweeney, it was far less likely that she would have been hit by the other car.

10 The judge accepted that there was a lack of evidence that the appellant knew that Ms Sweeney was behind the car, although he knew that she was nearby. He accepted that the appellant's vision may have been obscured to some degree, but he had reversed quickly without looking beforehand. Any lack of visibility should have required him to be 'all the more careful'.[4]

11 The judge observed that both the prosecutor and defence counsel accepted that general deterrence, denunciation and punishment were important factors in the case. The appellant had driven his van in a dangerous way while he was angry and affected by alcohol, resulting in the infliction of catastrophic injuries. He had a prior conviction 'of some relevance'.[5]

12 The judge took account of the fact that the appellant would be deported after he served his sentence and that his hopes of settling in Australia had been destroyed. He accepted that the appellant's plea had utilitarian value and that the appellant was now remorseful for what had happened. The judge also accepted that principles 5 and 6 in R v Verdins[6] applied because it was likely that the appellant would find a term of imprisonment more onerous than a person of normal health and there was a risk that imprisonment would have a significant adverse effect on his mental health. The judge described the application of these principles in this case as 'modest'.[7]

13 The judge considered that the appellant's overall moral culpability was within the 'mid to upper-range'.[8]

14 The relevance of the appellant's time spent in custody before sentence was canvassed during the plea hearing. The appellant had been remanded in custody after his arrest on 26 October 2016. He spent 104 days in remand before being bailed to immigration detention on 6 February 2017. As already mentioned, he remained in immigration detention until his bail was revoked after the plea hearing. The judge was told by the prosecutor that the appellant's visa had been revoked, but there was no explanation given as to the basis upon which that had happened. A total of 527 days were spent in immigration detention.

15 The parties referred the judge to this Court's decision in Underwood (a Pseudonym) v The Queen [No 2],[9] in which it was said that immigration detention should be taken into account in sentencing in a 'broad and practical way'.[10] The judge noted in passing that the appellant had 'almost done two years in a custodial setting'. The prosecutor submitted that the 'broad and practical' approach could result in '20 months or at least close to it' being taken into account, albeit without the time spent in immigration detention forming the basis of a pre-sentence detention declaration under s 18(1) of the Sentencing Act 1991.

16 Shortly before the delivery of the judge's reasons for sentence, the parties filed short submissions regarding the way in which the appellant's time spent in immigration detention should be approached. Defence counsel, in his written submissions, referred to different ways in which sentencing judges had approached the task of taking account of time spent in immigration detention in a 'broad and practical way'.[11] He submitted that, in the interests of transparency, the Court should state the amount by which the total effective sentence is reduced because of immigration detention. It was submitted that all of the time spent by the appellant in immigration detention operated to reduce his sentence.

17 The prosecutor submitted that pre-sentence detention from 26 October 2016 to 6 February 2017, being a total of 104 days, should be declared under s 18 of the Sentencing Act. The submissions referred to the same authorities as those of the defence as well as this Court's decision in Akoka v The Queen.[12] The prosecutor submitted that the sentencing judge should not numerically identify the 'credit' referable to immigration detention but that, as with all other sentencing discounts which formed part of the application of the instinctive synthesis, the judge should explain what weight is assigned to the punitive nature of immigration detention in reaching a lower head sentence and non-parole period.

18 The judge held that the period of immigration detention was not calculable as pre-sentence detention under s 18(1) of the Sentencing Act, 'as [the appellant was] in custody for a reason not related to these proceedings'.[13] The judge stated:

You were taken into immigration detention because your bridging visa had expired and your application for a protection visa was refused, so you have become an unlawful non-citizen.[14]

19 The judge referred to Underwood. He noted that, while in immigration detention, the appellant was in a secure, guarded and locked environment where he did not have freedom to come and go. He continued:

With particular emphasis on these practical consequences, I find that the period you spent in immigration detention should be regarded as a significant factor in mitigation of the head sentence and non-parole period to be imposed.[15]

I also take into account that you were facing a charge of attempted murder during your time in custody until May 2018, when you decided to plead guilty to a significantly less serious charge. The factors of delay and uncertainty together suggest significant mitigation in your case is appropriate. However, as stated, you were in immigration custody for a reason not related to these proceedings. This militates against giving you full credit for the period you were in immigration detention, and I will moderate the weight I attach to it.

Nonetheless, in conformity with the principle expressed in Underwood, the sentence I will impose on you will be significantly reduced as a result of the mitigating effect of your period of immigration detention.[16]

21 In summary, the judge held that the period spent by the appellant in immigration detention was a significant factor in mitigation of both the head sentence and the non-parole period, but that, because the appellant was in immigration custody 'for a reason not related to these proceedings', the weight attached to that detention was to be moderated and the appellant would not be given full credit for the period in question.

22 On 24 January 2019, the appellant was given leave to appeal by Kyrou JA on the following grounds:

Ground 1: The learned sentencing judge erred in moderating the weight attached to the period the accused had spent [in] immigration detention, in particular:

(i) in finding the accused was in immigration detention for a reason not related to these proceedings;

(ii) in finding that as a result the weight to be given to the period the [appellant] spent in immigration detention should be moderated.

Ground 2: The [appellant] was not afforded procedural fairness with respect to the finding of the learned sentencing judge [that] the entire period spent in immigration detention was not referable to the offending.

Ground 3: The head sentence and non-parole period imposed were manifestly excessive in all of the circumstances of this case.

23 In light of the significance of the observation of the sentencing judge that the appellant was in immigration detention for a reason 'not related to these proceedings', and the absence of material before the Court explaining the basis upon which the appellant had been in immigration detention, the Court indicated to the parties before the hearing of the present appeal that it would be assisted by submissions as to the circumstances in which the appellant ceased to hold a bridging visa.

24 The respondent filed helpful submissions setting out the relevant circumstances, as to which it had sought clarification from the Department of Home Affairs. That material explained that the Department had cancelled the appellant's visa after he was charged with attempted murder in the present matter (the Crown having subsequently accepted a plea to the substantially lesser charge of dangerous driving causing serious injury). The Minister had cancelled the visa of the appellant under s 116(1)(g) of the Migration Act 1958 (Cth), which empowered him to take that step if satisfied that a prescribed ground for cancelling a visa applied to the appellant. The prescribed ground was contained in reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth), which prescribed a ground to the effect that the Minister was satisfied that the holder of the relevant visa had been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.

25 It thereby emerged that, despite the observation made by the sentencing judge, the appellant was in immigration detention for a reason entirely related to the present proceedings, and not for any other reason.

26 Oral argument concentrated on the manner in which the judge had treated the question of immigration detention. Mr Tovey, on behalf of the appellant, submitted that the judge had erred in moderating the significance to be attached to the period spent in immigration detention on the incorrect basis that this detention had not been for a reason related to the proceedings. He accepted that s 18 of the Sentencing Act does not apply to immigration detention, and that exact equivalence was not mandated, but submitted that the judge had erred in the application of the approach described in Underwood by making the error identified. It was submitted that it would be appropriate for the Court to resentence the appellant, in effect, to imprisonment for the time already spent in custody of one kind or another.

27 Ms Ellis, for the respondent, submitted that the sentencing judge had used the expression 'reasons not related to this proceeding' only as shorthand to refer to the test in s 18(1) of the Sentencing Act. As such, his observation went no further than stating that s 18(1) did not apply and that the approach in Underwood was therefore to be applied instead. She submitted that the judge had, consistently with that approach, allowed for a significant reduction in sentence on account of time spent in immigration detention. It was submitted that, even making full allowance for time spent in immigration detention, the head sentence amounted to 3 years and 9 months, and that sentencing statistics showed that between 2011 and 2016 35% of sentences for dangerous driving causing serious injury were in the range of 3 to 4 years.

28 Both counsel accepted that the appellant's earliest release date would be 3 October 2019 and that his term of imprisonment would end on 4 August 2020. If immigration detention were to be equated with custody in prison, this would reflect a total effective sentence of 3 years and 9 months and a non-parole period of 2 years and 11 months. To release the appellant now, as Mr Tovey urged, would mean imposing a head sentence of about 15 months less, equating to about 2 years and 6 months' imprisonment. Treating immigration detention as equivalent to prison would involve imposing a sentence some 17 months less than that, namely imprisonment for 1 year and 1 month.

29 Section 18(1) of the Sentencing Act provides:

18 Time held in custody before trial etc. to be deducted from sentence

(1) If an offender is in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order, any period during which he or she was held in custody in relation to -

(b) proceedings arising from those proceedings including any period pending the determination of an appeal -

must be reckoned as a period of imprisonment or detention already served under the sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders.

30 The provision poses the question whether there is a period during which the offender was 'held in custody in relation to ... proceedings for the offence'. The Court observed in Underwood that this provision had no operation in relation to a period of immigration detention pending trial.[17] In context, the expression 'in relation to ... proceedings for the offence' describes a connection between the custody and the proceedings which is more than tenuous or incidental. Moreover, by requiring that previous custody be reckoned as time already served, unless the court otherwise orders, the provision makes clear that its purpose is to avoid double punishment. For that purpose, the legislature plainly treats a hospital security order as prima facie punitive in character.

31 Although there is a connection in the present case between the custody in immigration detention and the offence, the connection with the proceedings for the offence is too tenuous or remote to satisfy the statutory test. Custody in immigration detention is not brought about as part of the proceedings for the offence and does not have the conduct of those proceedings as its objective. Immigration detention exists in the context of executive powers to receive, investigate and determine applications for visas and to admit or deport applicants once the application is determined, and as such is lawful for that purpose alone and not for any punitive purpose.[18]

32 The question is then, what account is to be taken of a period spent in immigration detention? As already noted, it was held in Underwood that the fact of such detention must be recognised in a 'broad and practical way' in the sentence imposed, reflecting the fact that the offender has been deprived of his or her liberty

32 during the relevant period.[19] That formulation drew upon the judgment of Brooking JA (with whom Winneke P and Hampel AJA agreed) in R v Heaney,[20] where a period in remand which was outside the terms of an earlier version of s 18(1) was taken into account 'in a broad way'.[21]

33 The Court in Underwood referred also to Akoka v The Queen, where this Court gave credit for time spent in a residential rehabilitation facility.[22] In the course of doing so, the Court explained how the question should be approached, as follows:

Self-evidently, it is in the community's interest that offenders - particularly young offenders with substance abuse problems - seek assistance from residential rehabilitation facilities and complete the rigorous treatment programs that they offer. Offenders will be encouraged to seek residential treatment if it is understood that sentencing judges will acknowledge, and give credit for, the punitive nature of residency in such a facility. The extent of that credit will depend on the circumstances of each case, including the nature and severity of the restrictions to which an offender has been subject and the duration of the offender's residency. Clearly, the period of residency must post-date the commission of the offences for which the offender is being sentenced. Further, a period of residency cannot be doubly credited. Thus, where the offender is sentenced on different occasions for separate offences following a period of residency, credit for that period can be given on only one of those occasions.

The credit referred to ... will, as with all other sentencing discounts, form part of the application of the instinctive synthesis without being numerically identified. However, as with other significant sentencing considerations, a sentencing judge should ordinarily explain how the punitive nature of residency at a rehabilitation facility has informed - in terms of the weight assigned to it - the instinctive synthesis.

Although residency at a rehabilitation facility has punitive elements, credit for it cannot be given in the same way as pre-sentence detention. Pre-sentence detention involves time spent in custody and, in accordance with s 18(1) of the Sentencing Act 1991, it must be deducted from a custodial sentence in a precise mathematical manner for the entire period the offender has spent in detention. On the other hand, residence at a rehabilitation facility, no matter how restrictive and punitive, is not equivalent to time spent in custody. It will not ordinarily result in a deduction of the entire period of residency from a custodial sentence.

For these reasons, residency at a rehabilitation facility is also different in nature to Renzella time. Although Renzella time is actual time spent in custody, it falls outside s 18 of the Sentencing Act 1991. As Renzella time is real incarceration it will usually be given greater weight than time spent in a residential rehabilitation facility.[23]

34 Several aspects of this reasoning are applicable to the case of immigration detention. First, the extent of the credit will depend on the circumstances of each case, including the nature and severity of the restrictions to which an offender has been subject and the duration of the detention. Secondly, the period of detention must post-date the commission of the offence for which the offender is being sentenced. Thirdly, the credit will form part of the application of the instinctive synthesis without being numerically identified. Fourthly, however, the sentencing judge should clearly explain what weight has been given to a period of immigration detention. It is important that this be done in order to explain what might otherwise appear to be an unduly low sentence.

35 This Court in Renzella stated that a sentencing court is obliged to take pre-sentence detention into account as a matter of justice.[24] It is plain from the Court's treatment of the issue in Akoka that the underlying rationale for taking into account any form of restriction on liberty as a result of the offending is, again, the avoidance of double punishment. Addressing that issue will involve questions of fact and degree.

36 Unlike time spent in a residential facility, immigration detention is time spent in custody. On the other hand, unlike residency at a rehabilitation facility, no part of the purpose of immigration detention is punitive.[25] This may mean that in practice the burden of immigration detention is less onerous than the burden of incarceration in a prison. However, again, each case will depend upon its circumstances. The ways in which both immigration detention and prison may be experienced are many and varied. Those in custody might have more or less freedom to mix with others or to move about within the facility. They might be accommodated with persons who are dangerous, or in a safer environment. But in the absence of evidence before a sentencing judge as to the nature of the burden of immigration detention, the judge will have no basis for distinguishing immigration detention from any other form of custody.

37 In the present case, the judge stated that the appellant was in immigration detention for a reason not related to the proceedings. We do not consider that this can be interpreted as a shorthand reference to s 18(1) of the Sentencing Act. The judge's reference to this feature as a basis for moderating the weight to be given to the detention was made after the judge had already held that s 18(1) was inapplicable and had moved on to apply Underwood. Moreover, when the judge first made the observation about detention not having been for a reason related to the proceedings, he elaborated by saying that the appellant had been taken into immigration detention because his bridging visa had expired and his application for a protection visa was refused. This was incorrect, because the bridging visa was revoked on the basis already described, and the appellant's application for a protection visa was refused only subsequently, when he was already in detention. Counsel for the respondent properly conceded that the evidence did not show that, but for the criminal charges in this proceeding, the appellant would have been in immigration detention for some other reason in any event.

38 The appellant has therefore established specific error in the sentencing judge's approach to the question of immigration detention. Ground 1 is made out.

39 It is unnecessary to say anything about the remaining grounds of appeal in the circumstances. However, we note in relation to the procedural fairness ground that this case highlights the difficulty facing sentencing judges when dealing with questions of immigration law. The judge was not assisted by submissions explaining the basis upon which the appellant was placed into immigration detention. Nor was there any specific evidence as to the nature and circumstances of that detention.[26] Sentencing judges, and this Court, are entitled to expect full submissions as to the legal position concerning an offender whose sentence depends partly on immigration matters, as well as evidence where relevant as to the nature and circumstances of detention.[27]

40 Error having been established, the appeal must be allowed unless the Court is of the opinion that no different sentence should be imposed.[28] In our view, in order to give proper weight to the approximately 17 months spent by the appellant in immigration detention, a different sentence should be imposed. In taking account of that matter in a broad and practical way, we give only limited weight to the fact that immigration detention differs from custody in a prison because it lacks a punitive purpose. As mentioned, there is no evidence enabling us to make a meaningful comparison between the circumstances of the appellant's detention and time spent on remand or in prison. It would nonetheless not be right for us to assume that the two forms of custody are identical.

41 We will therefore give the time spent in immigration detention significant weight, recognising that it is only because of the present offending that the appellant's bridging visa was cancelled.

42 Turning to resentencing, we endorse the sentencing judge's treatment of this as very serious offending. The present case was an extremely grave example of the offence of dangerous driving causing serious injury. The appellant, while intoxicated and angry, drove in an exceptionally dangerous way, abruptly and at speed, with a total disregard for the safety and welfare of Ms Sweeney, with catastrophic consequences. The appellant had recent convictions for driving while unlicensed and intoxicated and failing to stop and assist after an accident. At the same time, we take account of the appellant's plea of guilty and the judge's finding of eventual remorse. Mitigation by reference to Verdins was, as the judge held, of a modest kind.

43 Making due allowance for the appellant's time spent in immigration detention in the way we have described, we will sentence the appellant to a term of 1 year and 9 months' imprisonment on the indictable charge and confirm the sentence on the summary charge, making a total effective sentence of 1 year and 10 months. We will fix a non-parole period of 1 year and 3 months.

44 We will declare under s 6AAA of the Sentencing Act that, but for the appellant's plea of guilty, we would have sentenced him to 2 years and 9 months' imprisonment with a non-parole period of 2 years.

[1] Crimes Act 1958 s 319(1A). The maximum penalty is 5 years' imprisonment.

[2] Road Safety Act 1986 s 30(1). The maximum penalty is 2 years' imprisonment.

[3] R v Sahhitanandan (2018) 85 MVR 361, 365-6 [28]-[29] (Champion J).

[6] [2007] VSCA 102; (2007) 16 VR 269.

[7] R v Sahhitanandan (2018) 85 MVR 361, 368 [46] (Champion J).

[9] [2018] VSCA 87 ('Underwood').

[10] Ibid [37] (Priest and McLeish JJA).

[11] Reference was made to DPP v Nafady [2018] VCC 721; DPP v Sinaga [2018] VCC 1122; DPP v Bhandari [2018] VCC 1072.

[12] [2017] VSCA 214 [110] (Warren CJ, Kyrou and Redlich JJA) ('Akoka').

[13] R v Sahhitanandan (2018) 85 MVR 361, 368 [49] (Champion J)

[17] [2018] VSCA 87 [33] (Priest and McLeish JJA).

[18] See, eg, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 10 (Mason CJ), 32 (Brennan, Deane and Dawson JJ), 50 (Toohey J), 71 (McHugh J); Al-Kateb v Goodwin [2004] HCA 37; (2004) 219 CLR 562, 571-2 [1], 573 [4] (Gleeson CJ), 582 [39], 584 [45] (McHugh J), 604-5 [110] (Gummow J), 636 [216], 638 [224] (Hayne J); Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333, 341 [17], 341 [24], 343 [29], 346 [39] (Kiefel CJ, Bell, Keane and Edelman JJ), 355-6 [82] (Gageler and Gordon JJ), 359 [94] (Nettle J).

[19] Underwood [2018] VSCA 87 [37] (Priest and McLeish JJA).

[20] (Victorian Court of Appeal, 27 March 1996) 6.

[21] Underwood [2018] VSCA 87 [34]-[35] (Priest and McLeish JJA). See also R v Renzella [1997] 2 VR 88, 96, 98 (Winneke P, Charles and Callaway JJA) ('Renzella').

[22] Underwood [2018] VSCA 87 [37] n 25 (Priest and McLeish JJA) citing Akoka [2017] VSCA 214 [109]-[112] (Warren CJ, Kyrou and Redlich JJA).

[23] Akoka [2017] VSCA 214 [109]-[112] (Warren CJ, Kyrou and Redlich JJA) (citations omitted).

[24] [1997] 2 VR 88, 97 (Winneke P, Charles and Callaway JJA).

[26] The appellant told Ms Lechner, clinical psychologist, that he was 'confined' to his room, but it did not appear that this was a result of the rules governing his detention. The appellant was recorded as having made this observation in the context of saying that he was housed with 'all the demented people'. Again, it was not clear what this meant, if anything, about the arrangements governing the appellant's detention.

[27] This observation is not confined to cases involving immigration detention. See, eg, Allouch v The Queen [2018] VSCA 244 [38]-[50] (Beach and Weinberg JJA); Zhao v The Queen [2018] VSCA 267 [61]-[66], [71] (McLeish, Niall and Weinberg JJA); Magedi v The Queen [2019] VSCA 102 [43]-[45] (Maxwell P and Weinberg JA).

[28] Criminal Procedure Act 2009 s 281(1)(b).