Tang v The Queen [2013] VSCA 31

2 The sentencing judge accepted that neither high speed nor drugs or alcohol were factors; the applicant's failure to stop at the red light was due to inadvertence. His Honour also accepted that, given the applicant's 'underlying good character', the only plausible explanation for her not stopping immediately after the collision was that she 'in essence, ... panicked.' However, the applicant's subsequent conduct did not reflect well on her. After she drove off, she did stop to make two telephone calls: one was to her boss to say she would be late because she was experiencing car problems, while the other was an attempt to get through to her insurance company. She then proceeded to work, where her colleagues noticed she looked stressed, was not acting normally, and that her car had been damaged. She told them that this had been caused when her car was on loan to a friend.

3 At lunchtime she took the car to a panel beater for repair, again recounting the story about her friend and asking that neither her partner nor her insurance company be told of the damage. When she returned to work, her colleagues confronted her, saying that if she did not go to the police, they would. Initially, the applicant said she would go to the police at the end of the working day, but in the early afternoon she presented herself to the Nunawading police station. In the meantime, workmates had reported the matter to the Ringwood police, and the car was already in police custody.

4 Immediately after the accident, other drivers had gone to Ms Edward's assistance. She was taken to the Alfred Hospital where it was found that she had suffered a serious closed head injury involving subdural haematoma, subarachnoid and intraventricular haemorrhage and cerebral contusions. Her face was fractured and bruised. There were fractures to her scapula, tibia and fibula, as well as bruising and abrasions to her body. Her family were told she might not survive.

5 After 23 days in intensive care, she was transferred to the Victorian Rehabilitation Centre. Her journey to even a modest degree of function - being able to sit in a wheelchair for an hour, or to stand with a frame for no more than 30 minutes, or to swallow safely - has been prolonged and arduous. She is not expected to be able to live independently again.

6 The applicant pleaded guilty to one charge of dangerous driving causing serious injury and one charge of failing to stop after an accident. On 7 November 2012 she was sentenced as follows:

Dangerous driving causing serious injury (s 319(1A) of the Crimes Act 1958)

Failing to stop after an accident (s 61(3) of the Road Safety Act 1986)

2 years' imprisonment, 14 months suspended for 2 years

Other orders: All Victorian licences and/or permits held by the applicant cancelled, disqualified from obtaining any such licence for 4 years from 7 November 2012

7 The applicant sought leave to appeal against the sentence on the following grounds:

Ground 1

The learned sentencing judge erred by denying the applicant procedural fairness in that he had regard to:-

(a) '... sentences at first instance by sentencing judges' [52] in circumstances when such sentences had not been identified or made available to the applicant in the course of the plea; and

(b) communications with other judges as to an appropriate sentence.

Ground 2

The learned sentencing judge erred by holding that the offence of failing to stop '... generally warrants imprisonment ... even where panic and acting in an autopilot sort of way is the explanation for leaving the scene' [27].

Ground 3

The learned sentencing judge erred in determining that denunciation, deterrence and rehabilitation could '... only be achieved by a period of actual incarceration' [57].

Ground 4

The imposition of an immediate custodial sentence was manifestly inappropriate.

8 Ground 1 has since been abandoned. I will therefore say of it only that its abandonment was well warranted.

Ground 2 - Term of imprisonment for failing to stop

9 During the course of the plea hearing, his Honour discussed with defence counsel what principles could be distilled from the recent case of R v Miller[1] about how the courts should deal with offenders convicted of failing to stop after an accident. Counsel responded: 'And that seems to be ordinarily receive a term of imprisonment. In my submission this is not in the "ordinarily receives" category.'[2]

10 Miller was a case in which the appellant had been charged with negligently causing serious injury and failing to render assistance following an accident in which he was the driver and the victim was a cyclist. The charges faced by Miller were different from those preferred in the present case, as were the maximum penalties applicable for each charge. Nevertheless, counsel's concession was, it seems to me, appropriate.

11 In his sentencing remarks, his Honour did not specifically mentioned Miller, but he did refer to the decisions of R v Mohamed[3] and Wassef v The Queen.[4] In relation to the latter his Honour said:

My reference to this case is because the discussion of the general sentencing principles, including where the maximum term has been increased. What can be seen is that leaving the scene of an accident is an offence that generally warrants imprisonment. This is the case even where panic and acting in an auto-pilot sort of way is the explanation for leaving the scene.

The need for deterrence and denunciation are such that it is usual that the only just and appropriate sentence is imprisonment. However, these cases perhaps are at either end of the scale and other cases, in between, are guides only and I must factor other matters into the equation which are particular to this case.[5]

12 The applicant submits that his Honour used Mohamed and Wassef 'to erroneously fetter the exercise of his sentencing discretion.' Those cases, it was submitted, do not stand for the proposition that this offence generally warrants imprisonment. Nor (the submission continued) was it consistent with the process of instinctive synthesis for his Honour to begin his analysis with the proposition that in cases of this kind punishment by imprisonment is generally appropriate. The question of what factors are the most prominent for sentencing purposes - in particular, deterrence and denunciation - will depend upon the circumstances of the case.

13 Mohamed was the case of a taxi driver who failed to stop after running over a drunken man who was lying prone in the roadway. He continued driving when under the influence of post traumatic stress disorder which re-emerged after having first been occasioned by events which occurred during his earlier life in Somalia. In that case the offender was re-sentenced to 20 months' imprisonment, 14 months of which was suspended for two years. This was the same effective sentence as that imposed upon the present applicant. She, however, faced two charges, not one like Mohamed; and she was not suffering from PTSD. Her criminality was at least as serious as his, arguably more so. For sentencing purposes, her case is in relevant (but by no means all) respects otherwise similar to his. Like cases should be treated alike. On this basis, her sentence was merciful.

14 By contrast to Mohamed, in Wassef Redlich JA concluded that the offender 'deliberately fled the scene, presumably to protect himself.'[6] There the offender, having driven his vehicle erratically, crossed into the oncoming lane of traffic and then hit a cyclist. He continued driving before engaging in an attempt to conceal his involvement in the accident. He also continued to deny his involvement until the day of his trial, when he pleaded guilty. His Honour noted that it was not an issue either on the plea or on appeal that 'given the need for general deterrence, a period of immediate imprisonment ought to be imposed.'[7] He further observed that the fivefold increase in the maximum penalty for the offence of failing to stop after an accident meant that that offence now attracted a maximum penalty twice that for dangerous driving causing serious injury. Describing the appellant's departure from the scene of the accident as 'inhumane', Redlich JA said:

Drivers who, in breach of their duty, depart the scene of an accident in circumstances where it is likely to be inferred that they did so to avoid the consequences of unlawful conduct, cannot expect that the courts will give weight to exculpatory explanations for why they have done so which are proffered after the event. They must expect the imposition of substantial terms of imprisonment.[8]

15 This passage is applicable to the circumstances of this case. It is true that here the applicant's decision to drive on was not a carefully calculated one but rather motivated by panic. On the other hand, she did depart the scene to avoid the consequences of her unlawful conduct, and she does ask the Court to give weight to exculpatory explanations proffered after the event. She must expect a term of imprisonment; and in examining the option of a suspended sentence, the judge is bound by s 27(1A) of the Sentencing Act 1991 to take into account the harm to the victim - which in this case was horrific. Moreover, notwithstanding his reference to Mohamed and Wassef as perhaps being at either end of the scale, it is clear that his Honour did consider both the options of a non-custodial disposition and a wholly suspended sentence as urged for by the defence.[9] And his Honour's comments were qualified - he spoke of a period of imprisonment being generally warranted. He was, especially given the provisions of s 27(1A), justified in so doing. What he said does not connote a decision reached after a two-stage process, in contradistinction to the necessary synthesis instinctively reached.

16 There is, in my opinion, no basis for granting leave on the second ground.

Ground 3 - Whether denunciation, deterrence and rehabilitation could only be achieved by incarceration

17 The sentencing judge noted that it was urged on behalf of the applicant on the plea that the need for denunciation and general deterrence did not have to be satisfied only by a period of actual incarceration. It was similarly submitted that a community corrections order was appropriate or, failing that, a sentence of imprisonment that was wholly suspended. Such a disposition would also facilitate the applicant's rehabilitation. Nonetheless, his Honour decided that the only option for expressing denunciation and deterrence, as well as facilitating rehabilitation, was a sentence of imprisonment with a component of actual incarceration and the remainder suspended.

18 I agree. By increasing to ten years' imprisonment the maximum penalty for failing to stop after an accident, Parliament clearly had general deterrence in mind. And the logic of that is clear. If anything is to act as a powerful deterrent to dangerous driving, it is the realisation that if you are involved in an accident and fail to stop, you will expose yourself - as did the present applicant - to two serious charges; dangerous driving and failing to stop. His Honour was not in error in thinking that deterrence and denunciation were properly served by actual imprisonment in this case, whereas a wholly suspended term would not achieve those ends. Nor could it be said that in this case rehabilitation would be facilitated by a non-custodial disposition.

19 I would therefore also refuse leave on ground 3.

Ground 4 - Imposition of an immediate custodial sentence was manifestly inappropriate

20 The applicant's written case refers to the findings by his Honour that the offence of dangerous driving was not aggravated by speed or drugs or alcohol. It also refers to the attitude of the victim and her relatives about whether a custodial order would be appropriate and to the powerful mitigating factors to be taken into account: the early plea, the applicant's overwhelming remorse, her age and lack of prior convictions, her background and circumstances, the positive evidence of good character, and the heavy burden of imprisonment resulting from her ex husband's ill health, and subsequent death, and the limits to her daughter's ability to care for him. It is clear from both the extensive plea transcript and the sentencing remarks that his Honour was well aware of all these factors, save that of the ex husband's death, and carefully considered them. His decision to impose a partially custodial sentence was not an easy one, but in my opinion, it was one that was open to him. In the end it was a matter for his Honour's discretion.

21 The applicant says that a partly suspended sentence was clearly inappropriate and that the circumstances of this case 'cried out for a fully suspended sentence, in the interests of the applicant and the public.' The applicant's written case relies on the remarks of Callaway JA about the term 'clearly inappropriate' in R v Mantini, but it is worthwhile setting out the quotation more fulsomely:

The expressions: "clearly inappropriate" and "manifestly excessive" mean the same thing. The former is more apt to describe a mistaken choice between different modes of punishment, for example between imprisonment and detention in a youth training centre or between a suspended and an unsuspended sentence. The latter is more apt to describe an unduly long sentence or non-parole period or an unduly heavy fine. The important point is that, if there is no specific error, appellate intervention is not warranted unless the sentencing disposition was not open to the judge.[10]

22 In my opinion, no specific error has been shown in what, it seems to me, was a carefully crafted set of sentencing reasons in which his Honour dealt appropriately with all relevant issues. I would not grant leave to appeal on Ground 4.

23 For the reasons given above, I would refuse leave to appeal on each of the grounds put forward.

25 The order of the Court will be that leave to appeal is refused.

[1] [2012] VSCA 265 ('Miller').

[2] Plea transcript, page 101, lines 20-22.

[3] [2009] VSCA 158 ('Mohamed').

[4] [2011] VSCA 30 ('Wassef').

[9] See sentencing remarks, [48]-[49] and [53]-[57].

[10] [1998] 3 VR 340, 349 (emphasis added).