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[2018] VSCA 7
General information, not legal advice.
Court of Appeal (Vic)
2018-02-02
Mr J, Priest JA, Santamaria JA
Original judgment source is linked above.
5 For the reasons that follow, we would refuse leave to appeal.
6 Charges 4 to 9 on the Indictment all relate to a fatal motor car collision on 27 January 2015. The first three charges relate to certain conduct of the applicant in the 36 hours or so leading up to the fatal collision.
7 During the afternoon of Monday, 26 January 2015, the applicant attended a gathering at a friend, Jennifer Chetcuti's, house. He there snorted white powder with a male, 'Budda', believing it to be cocaine. Ms Chetcuti later told police that after the applicant snorted the powder he started to look 'really unwell'. She told police that an hour or two later she observed that the applicant was 'pale and finished and gone', was 'slurring his words, he could barely walk, he could barely talk, he looked very drowsy and looked like he had been on Heroin'.
8 The applicant and 'Budda' left shortly afterwards, the applicant driving his mother's Nissan Dualis. Charge 1, reckless conduct endangering serious injury, relates to aspects of the applicant's driving, approximately 20 minutes apart.
9 Thus, at about 7.50 pm that evening, the applicant, whilst affected by the unknown drug that he had ingested earlier in the afternoon, drove the Nissan along Ballarat Road, Deer Park, and collided with a stationary vehicle driven by Snezana Vasilevska, in which her husband was a passenger. Prior to this collision, the applicant had driven his vehicle west along Ballarat Road towards Station Road. Ballarat Road is a major arterial road, and the intersection of Ballarat Road and Station Road is controlled by traffic lights. As the applicant approached the intersection of Station Road he drove in the bus lane on Ballarat Road; attempted to turn left into Station Road; drove over two median strips in Station Road; drove onto the wrong side of Station Road; and collided with and damaged Ms Vasilevska's vehicle (which was stationary, facing north at a red arrow). Having collided with and damaged Ms Vasilevska's vehicle, the applicant failed to stop (summary charge 9); failed to exchange his name or address with her (summary charge 7); and failed to render assistance (summary charge 8).
10 Another motorist, Diana Mulipola, witnessed the collision and noted the registration number of the applicant's vehicle. About 20 minutes later, whilst travelling south on Station Road, Ms Mulipola again saw the applicant's vehicle on Station Road, north of Ballarat Road. She observed the applicant's vehicle drive through a red light, and later told the police 'he nearly wiped me off'. Ms Mulipola was so concerned about the applicant's dangerous and erratic driving that she followed his vehicle to the Derrimut Village Shopping Centre car park and kept the applicant under observation. She said that he zigzagged in and out of lanes, not stopping or slowing down at all red traffic lights, and that he hit the kerb when attempting a U-turn to get into the car park.
11 Charge 2, reckless conduct endangering serious injury, is concerned with the applicant's driving within the Derrimut Village Shopping Centre car park.
12 When he arrived at Derrimut Village Shopping Centre, the applicant drove a few metres into the car park and stopped his vehicle in the roadway before falling asleep at the wheel, completely blocking the roadway. After a few minutes he woke up and drove a few more metres before once more stopping the vehicle and falling asleep at the wheel. People in the vicinity yelled and blasted their horns. After about a minute the applicant woke and continued to drive.
13 At that point, Katelyn Garlick (aged 19 years) and her brother Brayden Garlick (aged 9 years) were crossing at a pedestrian crossing in the car park. The applicant drove straight towards them and did not slow down or stop, causing them to run out of the way to avoid being struck. As a result of nearly being struck, Brayden Garlick was reduced to tears.
14 The applicant then stopped his vehicle in the middle of the road, slumped over the steering wheel as if asleep. He then woke up and sped off. The applicant then turned into an area of the car park and collided with a shopping trolley bay. He then stopped his car in the car park and walked towards Coles Liquorland.
15 Ms Mulipola approached the applicant's parked car and saw a male on the back seat, observing that he 'looked like he was knocked out, like in a deep sleep', and that he 'looked like he was on something ... drunk or something'.
16 At approximately 8.49 pm police attended the car park and saw the applicant's vehicle rolling forward with him in the driver's seat. Senior Constable Daniel Allen opened the driver door and observed the applicant texting on two mobile phones at the same time. He removed the car keys from the ignition. The applicant produced his driver's licence, got out of the vehicle and was observed by Senior Constable Allen and Leading Senior Constable Emile Caggiati to be stumbling and slurring his speech. He appeared to be severely drug-affected.
17 Leading Senior Constable Caggiati located an unconscious male, 'Budda', on the back seat of the applicant's vehicle. An ambulance attended and the male was taken to Sunshine Hospital.
18 Police conducted a Preliminary Breath Test for alcohol with the applicant which provided a negative result. Senior Constable Allen then took the applicant to the Moonee Ponds Police Station. During the car journey the applicant talked to himself. At one point he also asked the two officers if they would drive him to
St Kilda to buy some 'gear'. After arrival at Moonee Ponds Police Station, the applicant refused to undergo a drug impairment assessment, but a police officer experienced in making such assessments noted that the applicant was 'speech confused, incoherent, slurred, eyes watery, pupils pinpoint, breathing was jerky, skin was pale, actions was scratching, emotional, restless, movement was clumsy and sluggish, balance was swaying and falling'. At one point the applicant appeared to fall asleep while police were speaking to him. He refused to undergo a formal drug assessment (summary charge 5).
20 After leaving the Moonee Ponds Police Station, the applicant entered the enclosed loading bay area of a Coles supermarket at Moonee Ponds Shopping Centre and stole a forklift. He drove the stolen forklift through a padlocked steel gate, and drove approximately eight kilometres along Buckley Street, Essendon, and Milleara Road, Keilor East, where he was intercepted by police at approximately 12.05 am. Police saw the forklift to be swerving left and right within the left hand lane.
21 The applicant was arrested and once more taken to the Moonee Ponds Police Station. For the duration of the interview the applicant appeared to be adversely affected by a drug or drugs. He was released from the Moonee Ponds Police Station at about 2.30 am.
22 Later that day, 27 January 2015, the applicant telephoned his cousin, Mendo Ivanovski, and told him that the night before he was given a line of what he thought was cocaine by a guy called 'Budda', but it was not cocaine. The applicant did not know what it was. He also said he could only remember 'bits' because of the drug he had taken. Jennifer Chetcuti received a similar phone call.
23 Charges 4 to 9 involve the applicant driving his vehicle through an intersection against a red light, striking two pedestrians crossing at the crossing, killing one and seriously injuring the other.
24 The two victims, Anthony Nguyen and Jasmine Vuong, both aged 17 years, were walking home after eating at the McDonalds restaurant on the corner of Taylors and Kings Roads, Delahey. They approached the pedestrian crossing on Taylors Road. Anthony Nguyen pressed the button to activate the pedestrian lights, so as to cross Taylors Road. Jasmine Vuong remembers being on the footpath and seeing a 'green man' on the lights opposite before they stepped onto the pedestrian crossing.
25 As the pair commenced to cross Taylors Road, the applicant was driving the same Nissan Dualis along Taylors Road in an easterly direction. He drove through a red light, hitting both Anthony Nguyen and Jasmine Vuong with the front left passenger side of the vehicle, throwing them towards the northern nature strip. The applicant did not stop and continued driving.
26 Anthony Nguyen suffered non-survivable head injuries and died. Jasmine Vuong sustained an acquired brain injury; a skull fracture; brain bruising; fractures to her pelvis; a fractured acetabulum; fractures to spinal vertebrae C2 and C7; a fracture to her right arm, tibia and fibula; and significant gravel rash abrasions. She remained in intensive care for 11 days and continues to suffer from the injuries she sustained as a result of the collision.
27 The red light that the applicant drove through was red for two seconds before the 'green man' on the pedestrian lights showed. At the time that they were struck, the victims were 1.1 metres away from the northern gutter, within the pedestrian crossing. The applicant's vehicle was travelling at approximately 57 to 60 kilometres per hour when it collided with them.
28 On Thursday, 29 January 2015, investigators attended the applicant's home, where a 2010 Nissan Dualis was parked. The vehicle, which had recently been cleaned, had a broken passenger headlight and casing, and there was damage to the passenger side of the bonnet.
29 Police arrested the applicant. He was seen by a forensic physician that day and was deemed unfit for interview. The physician recommended that the applicant be allowed to sleep. When the police endeavoured to interview the applicant the next day, Friday, 30 January 2015, the applicant provided no comment.
Ground 1 - Manifest excess on charges 1 and 2
30 As we have indicated, charges 1 and 2 relate to two incidents of the applicant's driving on 26 January 2015.
31 Charge 1 concerned his driving 'at Deer Park' (which included his collision with Ms Vasilevska's car), and charge 2 concerned his driving 'at Derrimut' (which included his driving through the pedestrian crossing in the Derrimut Village Shopping Centre car park when Katelyn and Brayden Garlick were crossing). Charge 1 alleged that the applicant 'without lawful excuse recklessly engaged in conduct, namely driving a motor vehicle whilst impaired by a drug or drugs and without due regard to road rules and traffic signals, that placed or may have placed persons in danger of serious injury'; and charge 2 alleged that the applicant 'without lawful excuse recklessly engaged in conduct, namely driving a motor vehicle whilst impaired by a drug or drugs and failing to stop and give way to pedestrians crossing at a pedestrian crossing, that placed or may have placed persons in danger of serious injury'.
32 The judge imposed individual sentences of two and a half years' imprisonment on each of charges 1 and 2, and ordered that nine months of the sentence on each charge be served cumulatively with the base sentence
33 In support of the first ground, counsel for the applicant's primary submission in the written case was that the individual sentences imposed on each charge are wholly out of range for the offences, and that the cumulation ordered is manifestly excessive. Counsel submitted that charges 1 and 2 'concern almost identical criminal conduct namely, driving a motor vehicle while significantly impaired by a drug and not complying with road rules', and were 'committed one immediately following the other in the same episode of driving over the space of less than one hour'. In those circumstances, so it was argued, 'individual sentences of 2 and a half years per charge and total cumulation of 18 months across both charges is not only manifestly excessive' but 'it doubly punishes the applicant for driving while impaired by a drug'. Moreover, it was submitted that, having regard to the fact that the charges could have been dealt with in the Magistrates' Court, where the maximum available penalty on each charge would have been two years' imprisonment,[16] sentences of two and a half years on each charge are excessive.
34 During oral argument, senior counsel for the applicant said that the applicant's moral culpability had been reduced; he had taken a drug that he believed to be a stimulant when in fact the drug that he took had had a soporific effect upon him. It was further contended that his reckless driving had not involved speed. Senior counsel said that the cumulation ordered with respect to the first two charges was excessive and could be explained by the sentencing judge impermissibly allowing herself to be affected by the calamitous consequences of the applicant's conduct that was the subject of charges 4 and 5.
35 We do not accept the premise that charges 1 and 2 represent 'the same episode of driving'. Although each incident of driving occurred on the same day, the two incidents were separated geographically and temporally. Each incident involved individual acts of appalling driving - albeit enjoying some common features (such as impairment by drugs and disobedience of road rules) - the culmination of the driving on the first charge being the collision with another vehicle, and the most significant feature of the second being the failure to stop at the car park pedestrian crossing. In our opinion, it cannot be gainsaid that different sections of the public, at different places and times, were placed in significant danger of serious injury. Thus, each incident of reckless conduct endangering persons had to be given recognition in the overall sentence imposed.
36 In her reasons for sentence, the judge described the driving the subject of charges 1 and 2 as 'extremely serious and ... chilling', and said that charges 1 and 2 'are particularly serious and are at the upper end of the sentencing range for the offence'. We entirely agree. Having regard to the very serious nature of the applicant's driving, we consider the individual sentences on charges 1 and 2 to be proportionate to the gravity of the applicant's offending (paying due regard to mitigating factors). They could not properly be said to be manifestly excessive. Indeed, if anything, it might be said that the sentence imposed on charge 2 could have been more severe than that imposed on charge 1, given that, once he had collided with Ms Vasilevska's car, the applicant must have realised - even in his drug-addled state - that his capacity to drive a car was severely compromised, yet he continued to drive. Moreover, cumulation of a mere nine months of the sentences on each charge, and on the base sentence, was entirely justified, given distinct aspects of the two incidents of driving. Contrary to the submissions of the applicant's counsel, the degree of cumulation ordered does not 'doubly punish' the applicant 'for driving while impaired by a drug'. Rather, as we have said, the degree of cumulation ordered recognises the distinct aspects of the two incidents of the applicant's driving.
37 Further, we reject the contention that the applicant's moral culpability was reduced because he was deceived as to the effects of the drug that he had ingested. He was well aware of the effects of that drug before he commenced driving on the evening of 26 January 2015 and that those effects meant that he was incapable of driving safely.
38 For the sake of completeness, we should add that we regard the submissions concerning the maximum sentences available in the Magistrates' Court as wholly without merit. Given the course and seriousness of the applicant's criminal conduct over two days, it is difficult to comprehend how it could ever have been thought appropriate that charges 1 and 2 could be dealt with in that court.
Ground 2 - Manifest excess on charges 6 and 7
40 Charge 6 alleged that the applicant 'failed to immediately stop his motor vehicle at the scene of an accident involving a motor vehicle in which a person was killed, which accident [he] knew or ought to have known had occurred and had resulted in a person's death'; and charge 7 alleged that the applicant 'failed to immediately stop his motor vehicle at the scene of an accident involving a motor vehicle in which a person suffered a serious injury, which accident [he] knew or ought to have known had occurred and had resulted in a person's serious injury'. (It will be remembered that the applicant's driving killed Anthony Nguyen and seriously injured Jasmine Vuong.)
41 The applicant's counsel did not submit that the individual sentence of three years' imprisonment for failing to stop after a fatal accident (charge 6) was manifestly excessive, and did not submit 'that cumulation in the order of 18 months is manifestly excessive'. It was submitted, however, 'that cumulation of three years across two charges that are made out by identical conduct is manifestly excessive'.
42 These submissions have some superficial attraction, but cannot be upheld when it is considered that the judge left the individual sentences on charges 8 and 9 - failing to render assistance respectively where a person had died and where a person had been seriously injured - to be served concurrently with all other sentences.
43 It is plain that the scheme of s 61 of the Road Safety Act 1986 is to provide for two separate offences, one concerned with failing to stop, and the other with failing to render assistance, after an accident where a person is either killed or suffers serious injury. Thus, insofar as presently relevant, s 61(1) provides:
61 Duty of driver etc. of motor vehicle if accident occurs
(1) If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the motor vehicle -
(a) must immediately stop the motor vehicle; and
(b) must immediately render such assistance as he or she can; ...
44 And s 61(3) provides:
(3) If -
(a) as a result of an accident involving a motor vehicle a person is killed or suffers serious injury; and
(b) the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and
(c) the driver of the motor vehicle does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident -
the driver is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum).
45 It will be appreciated that charges 6 and 8 relate to the duties created by s 61 so far as they relate to the deceased victim, Anthony Nguyen, and charges 7 and 9 relate to the seriously injured victim, Jasmine Vuong. Thus, although it might be argued that the failure to stop after the accident was a single act or omission relevant to a single accident, there were two separate victims to whom the applicant failed to render assistance, who could not be rendered 'meaningless statistics' through a failure to cumulate part of the sentences relating to each of them.[17] Hence, although it might be argued with some force that there should strictly have been little or no cumulation between the sentences on charges 6 and 7, and that any cumulation to be ordered strictly should have been with respect to the sentences on charges 8 and 9, in a broad and practical sense the relevant orders for cumulation were made in recognition of the fact that there were two separate victims.
46 Even were the applicant's argument - which is essentially structural - to be upheld, however, we would nonetheless refuse leave to appeal on ground 2, since to grant leave would be futile. In our opinion, even if there were an error in the sentence first imposed, no different sentence should now be imposed.[18] The judge described the applicant's offending on charges 6, 7, 8 and 9 as 'despicable'. We agree. Her Honour said that the applicant 'behaved in a callous manner having no regard for the well-being of any person that [he] struck', his state of mind being to avoid the consequences of his actions. Once more, we agree. Furthermore, we agree with the following observations of the sentencing judge:
In the circumstances, I must give a significant weight to denunciation and general deterrence. As a mature man who behaved in a cowardly manner I must give weight to special deterrence to deter you from such offending. As to Charges 6, 7, 8 and 9, I sentence you at the upper end of the sentencing range for each of those offences.
47 We note that the maximum sentence for the offences of failing to stop and failing to render assistance were increased from two years to 10 years' imprisonment in 2005. That fivefold increase in the maximum sentence makes it plain that Parliament intended that general deterrence be given significant weight in the exercise of the sentencing discretion in a case such as this.[19] As Santamaria JA observed in Tokay:[20]
[T]he maximum penalty for a contravention of s 61(3) of the Road Safety Act 1986 (Vic) has increased fivefold since June 2005. The maximum is now ten years. That maximum penalty reflects the serious community concern and disapproval of the failure to stop and render assistance. Several judges of the Court have described the reprehensible nature of the offence, particularly in circumstances where the victim has suffered serious injury, and have referred to the fact that offenders must expect a substantial term of imprisonment.[21]
49 The application for leave to appeal against sentence is refused.
[1] He was born on 13 August 1981, and was aged 33 at the time of offending.
[3] Crimes Act 1958, s 23. The maximum penalty is five years' imprisonment.
[4] Crimes Act 1958, s 74(1). The maximum penalty is 10 years' imprisonment.
[5] Crimes Act 1958, s 319(1). The maximum penalty is 10 years' imprisonment.
[6] Crimes Act 1958, s 319(1A). The maximum penalty is five years' imprisonment.
[7] Road Safety Act 1986, ss 61(1)(a) and 61(3). The maximum penalty is 10 years' imprisonment or 1200 penalty units.
[8] Road Safety Act 1986, ss 61(1)(a) and 61(3). The maximum penalty is 10 years' imprisonment or 1200 penalty units.
[9] Road Safety Act 1986, ss 61(1)(b) and 61(3). The maximum penalty is 10 years' imprisonment or 1200 penalty units.
[10] Road Safety Act 1986, ss 61(1)(b) and 61(3). The maximum penalty is 10 years' imprisonment or 1200 penalty units.
[11] Bail Act 1977, s 30A(1). The maximum penalty is three months' imprisonment or 30 penalty units.
[12] Road Safety Act 1986, ss 49(1)(ca) and 49(3)(a). The maximum penalty is 12 penalty units for a first offence.
[13] Road Safety Act 1986, s 61(1)(c). The maximum penalty is 14 days' imprisonment or 5 penalty units for a first offence.
[14] Road Safety Act 1986, s 61(1)(b). The maximum penalty is 14 days' imprisonment or 5 penalty units for a first offence.
[15] Road Safety Act 1986, s 61(1)(a). The maximum penalty is 14 days' imprisonment or 5 penalty units for a first offence.
[17] See in a different context, DPP v Solomon [2002] VSCA 106; (2002) 36 MVR 425, 429-30 [19] (Winneke P); R v Izzard [2003] VSCA 152; (2003) 7 VR 480, 485 [23] (Callaway JA); Towle v The Queen [2009] VSCA 280; (2009) 54 MVR 543, 571-2 [95]-[97] (Maxwell P).
[18] See Criminal Procedure Act 2009, ss 280(1) and 281(1).
[19] Sarikaya v The Queen (2015) 73 MVR 1, 10 [34] (Maxwell P and Kaye JA). See also Wassef v The Queen [2011] VSCA 30, [30]-[32] (Redlich JA).
[20] (2014) 69 MVR 24, 31 [26] (citations omitted).
[21] Nguyen v The Queen [2014] VSCA 53; Wassef v The Queen [2011] VSCA 30; Tang v The Queen [2013] VSCA 31; Miller v The Queen [2012] VSCA 265; DPP (Vic) v Josefski [2005] VSCA 265; (2005) 13 VR 85; Pollard v The Queen [2010] VSCA 156; cf R v Mohamed [(2009) [2009] VSCA 158; 53 MVR 82]. In R v Harding [(2008) [2008] VSCA 124; 50 MVR 413], Lasry AJA (with whom Ashley and Dodds-Streeton JJA agreed) quoted [at 416 [18]] the Second Reading Speech in the Victorian Parliament, made on 5 May 2005, in support of the Bill to increase the penalty for this offence from 2 years' to 10 years' imprisonment. ...
... if, in a particular situation, a driver causes serious injury to a pedestrian and then leaves the scene of the accident contrary to s 61 of the Road Safety Act 1986 (Vic) because that person considers they are at risk of prosecution as a result of the consumption of alcohol or drugs, the attempt to avoid that risk significantly increases the culpability of the offending. So much is clear from the Second Reading Speech to which I have already referred.
Vasilevski
The Queen [2018] VSCA 7