Al-Anwiya v The Queen
[2022] VSCA 181
•30 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0102
| MARTIN AL-ANWIYA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 August 2022 |
| DATE OF JUDGMENT: | 30 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 181 |
| JUDGMENT APPEALED FROM: | R v Al-Anwiya [2022] VSC 428 (Fox J) |
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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death, failing to stop after an accident and failing to render assistance – Youthful offender – Guilty plea – Category 2 offence – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Ms S Keating with Ms N Kaye | ||
| Respondent: | Mr C Boyce QC | ||
Solicitors | |||
| Applicant: | Sarah Pratt & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
BEACH JA:
On 8 June 2022, the applicant, then aged 21 years,[1] pleaded guilty in the Supreme Court to dangerous driving causing death[2] (charge 1), failing to stop after motor vehicle accident[3] (charge 2) and failing to render assistance after a motor vehicle accident[4] (charge 3).
[1]His date of birth is 29 July 2000.
[2]Crimes Act 1958, s 319(1). The maximum penalty is 10 years’ imprisonment.
[3]Road Safety Act 1986, ss 61(1)(a) and 61(3). The maximum penalty is 10 years’ imprisonment.
[4]Road Safety Act 1986, ss 61(1)(b) and 61(3). The maximum penalty is 10 years’ imprisonment.
Following a plea, on 29 July 2022 – the applicant’s 22nd birthday – the judge sentenced the applicant to 10 months’ imprisonment, with a community correction order (‘CCO’) of two years’ duration, in accordance with the table below:
Charge
Offence
Sentence
Cumulation
1
Dangerous driving causing death
6 months
2 months
2
Failing to stop after a motor vehicle accident
8 months
Base
3
Failing to render assistance after a motor vehicle accident
6 months
—
Total effective sentence:
10 months’ imprisonment with 2 year CCO
Section 6AAA declaration:
3 years and 6 months’ imprisonment with 2 years non-parole
Other orders:
On charge 1, all licences or permits are cancelled for a period of 18 months (pursuant to ss 89(1)(a) and 89(2)(a) of the Sentencing Act 1991); and on charges 2 and 3, licences or permits are cancelled and disqualified from obtaining any for a period of four years (pursuant to s 61(6) of the Road Safety Act 1986).
The applicant now seeks leave to appeal on two grounds:
1 The individual sentences imposed and order for cumulation, were manifestly excessive. Any term of imprisonment was wholly outside the range.
2 The learned sentencing Judge erred in failing to find the exception in s 5(2H)(e) of the Sentencing Act 1991, established.
In our view, neither ground has substance. We would thus refuse leave to appeal. Our reasons follow.
The charges on the indictment arose out of a pedestrian collision in which Mr Marqas Hermez, aged 73 years, was struck by a car driven by the applicant and killed. It arose in the following way.
On Sunday, 25 October 2020, at approximately 11.15 am, the applicant, aged 20 years and the holder of a probationary licence, was driving his silver Nissan sedan on Silvester Parade in Roxburgh Park. The applicable speed limit was 50 kilometres per hour.
At that time, Mr Hermez was walking from his home to the local shops.
That part of Silvester Parade where the collision occurred has a sweeping, uphill curve to the left. The applicant was driving in an easterly direction in conditions in which the weather was fine and the road surface dry. McPherson Boulevard, which meets Silvester Parade at a T-intersection, was on his right-hand side. On the south side of Silvester Parade, to the applicant’s left-hand side, was a footpath that runs alongside the road until just west of McPherson Boulevard. At this point, the footpath turns right and ends at the road’s edge. There is no pedestrian crossing, or lights, speed control devices or signage of any type. Mr Hermez was there attempting to cross Silvester Parade when he was struck by the front right-hand side of the applicant’s vehicle. He was thrown into the air and landed on the roadway. Witnesses described hearing a screech and a loud bang, although nobody witnessed the actual collision.
The applicant immediately left the scene, quickly and without stopping. He did not attempt to render any assistance to Mr Hermez. Other motorists stopped and assisted Mr Hermez, however, and police and ambulance were called. Despite that assistance, Mr Hermez died at the scene.
After the collision, the applicant did not return home – which was nearby – and instead drove approximately 1.5 kilometres to the home of a friend, Mark Albazi. The applicant told Mr Albazi, ‘Accident’, and asked to be taken home. On the way, Mr Albazi asked what had happened. The applicant said he had been in an accident and would return in half an hour to get his car. Friends and family quickly pieced together that something serious had occurred, and returned the applicant to the scene, where he was arrested shortly before noon.
The applicant was interviewed by police later that day with the assistance of an Arabic interpreter. He gave an account to the effect that the deceased appeared all of a sudden, the applicant braked, and he did not remember anything after that. A sample of the applicant’s blood showed that no alcohol or illicit drugs were present.
Police examined the scene and the applicant’s vehicle. It was concluded that Mr Hermez was approximately 2.2 metres across the road when struck. He was thrown approximately 11.27 metres by the impact. The bottom driver’s side corner of the applicant’s windscreen was smashed. Two straight tyre skid marks approaching the collision scene were observed. The left-hand skid mark was approximately 23 metres long and the right hand skid mark was approximately 6.98 metres long. Given that the applicant’s vehicle was not fitted with ABS brakes, once his brakes locked, he could not steer.
The Summary of Prosecution Opening put the case against the applicant as follows:
It is agreed between the prosecution and defence that the charge of dangerous driving causing death is put on the basis that the [applicant] was driving in a manner that was dangerous to the public having regard to all the circumstances, in that he failed to keep a proper lookout for pedestrians, and failed to pay due care and attention.
It was not alleged that the applicant was speeding either at the time of or prior to the collision. The speed of the applicant’s vehicle, both when he first saw the victim and at the point of impact, are not known.
For the purposes of the Sentencing Act 1991, dangerous driving causing death is a category 2 offence.[5] The provisions of s 5(2H) of the Act therefore applied. That being so, s 5(2H) of the Act obliged the sentencing judge to impose a period of imprisonment without a CCO unless (among other things) the applicant proved on the balance of probabilities that he had impaired mental functioning that would result in him ‘being subject to substantially and materially greater than the ordinary burden or risks of imprisonment’, or that ‘there are substantial and compelling circumstances that are exceptional and rare and that justify’ not imposing a sentence of imprisonment. So far as relevant, s 5(2H) provides:
[5]See s 3(1).
(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(c) the offender proves on the balance of probabilities that—
…
(ii)the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
…
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
The judge found that the provisions of sub-s (2H)(c)(ii) – but not sub-s (2H)(e) – were engaged. She said:[6]
The evidence satisfies me, on balance, that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment faced by a young, first-time, non-violent offender. This finding means a sentence, other than a sentence of imprisonment, may be imposed on charge one. Of course, the exception created by s 5(2H)(c)(ii) may be satisfied but the offender still sent to jail.[7]
[6]R v Al-Anwiya [2022] VSC 428, [50] (‘Reasons’).
[7]See, for eg, Peers v The Queen [2021] VSCA 264, where s 5(2H)(c)(ii) was satisfied, and the offender re-sentenced to 20 months’ imprisonment with a non-parole period of 8 months’ imprisonment.
Under cover of the first ground, counsel for the applicant submitted that a CCO – without an associated period of imprisonment – was the only reasonable sentencing option available to the judge on charge 1, having regard to:
·the applicant’s post-committal guilty plea to a revised prosecution case;
·the plea of guilty was found to have significant value;
·the absence from the applicant’s offending of speed, alcohol, drugs fatigue or other aggravating feature;
·the fact that the offending took place over a short distance and period of time;
·there was no prolonged period of inattention;
·the objective gravity of the offending was low;
·the applicant’s moral culpability was low;
·the applicant had a disadvantaged background;
·the applicant suffered from chronic and disabling post-traumatic stress disorder (‘PTSD’);
·Verdins[8] principles were at play;
·it is unlikely that the applicant would receive individualised treatment for his PTSD in prison;
·the applicant was genuinely remorseful;
·the applicant was of good character with no prior convictions;
·there was little risk of re-offending;
·there were positive prospects for rehabilitation; and
·the applicant was youthful but just exceeded the threshold for a youth justice centre sentence.
[8]R v Verdins (2007) 16 VR 269 (‘Verdins’).
In careful reasons for sentence, the judge noted that the applicant, born in Baghdad, had as a child a gun pointed at his head by a soldier. When aged seven, he was at a shopping centre in Baghdad when a bomb exploded, and he was confronted with blood and human remains. After that, he suffered psychological stress when travelling. The applicant’s family fled Iraq for Turkey when he was 10. He often refused to go to school because he felt unsafe. When aged 14 the applicant left school and worked as a waiter to help support his family. He was exploited in that job due to his ethnic background and visa status. The applicant arrived in Australia when he was 17. He enrolled in a Kangan Institute English as a Second Language course and remained involved with his family in an orthodox Christian church.[9]
[9]Reasons, [11]–[15].
The judge also noted that, while he was studying English, the applicant worked in construction with his uncle, but refused to take a wage. His parents do not work due to physical disabilities, and he has always assisted with daily household tasks. The applicant has never used illegal drugs, and consumed alcohol very occasionally and never to excess. A month prior to the offending, the applicant completed a security course. Since the offending, the applicant has been shunned by many members of his community, and his girlfriend ended their relationship. His immediate family, and some of his extended family and friends, remain supportive.[10]
[10]Reasons, [16]–[17].
A consultant psychologist, Luke Armstrong, provided a report dated 25 May 2022 and gave evidence on the plea. The judge noted that Mr Armstrong had diagnosed the applicant as suffering from PTSD, and had expressed the opinion that the applicant suffered a dissociative reaction when Mr Hermez hit the applicant’s windscreen, the applicant being propelled back to the bombing in Baghdad. As a result, the applicant lacked the capacity to act in a calm and rational way. His PTSD symptoms were also reactivated, and he became consumed with fear. In Mr Armstrong’s opinion, the applicant’s PTSD would again be reactivated if he were imprisoned. He will be a high-risk prisoner.[11]
[11]Reasons, [18]–[26].
The judge noted that the applicant pleaded guilty to charges 2 and 3 at the earliest reasonable opportunity, with his plea to dangerous driving coming later. There was, the judge said, ‘significant utilitarian value’ in the guilty pleas, ‘particularly given the courts continue to be impacted by the COVID-19 pandemic and resulting backlog’. The ‘additional mitigating value of a guilty plea in these circumstances must be reflected in the ultimate sentence’.[12] Overall, the judge accepted that the applicant was ‘deeply affected by the death of Mr Hermez, and genuinely remorseful for [his] offending’.[13]
[12]Worboyes v The Queen (2021) 96 MVR 344; Papagelou v The Queen [2022] VSCA 42, [28].
[13]Reasons, [28]–[30].
Further, the judge said that the applicant’s youth ‘mitigates sentence as expressed in the well-established principles set out in R v Mills’.[14] The judge also noted that the applicant was of good character, which ‘remains a mitigating factor that must be taken into account’. He has no prior convictions and specific deterrence was of little weight in sentencing.[15]
[14][1998] 4 VR 235.
[15]Reasons, [31]–[33].
The judge observed that the applicant’s current PTSD ‘is referrable to this collision’. His extreme psychological reaction is ‘relevant to remorse, the application of s 5(2H)(c)(ii), and the application of Verdins’, but ‘does not constitute past or additional punishment for sentencing purposes’. Any mitigatory effect of delay, the judge said, is ‘modest’, although the ‘more difficult’ conditions of imprisonment due to the pandemic ‘mitigate any sentence of imprisonment’.[16]
[16]Reasons, [34]–[36].
In assessing the seriousness of the applicant’s dangerous driving, the judge took into account that: it ‘took place over a very short period, both in terms of time and distance’, albeit the judge said that she could not ‘make any finding as to the period of inattention’ (other than it was sufficient to constitute dangerous driving); the applicant had ‘a clear view of the road ahead and surroundings’; the applicant ‘commenced braking prior to the collision, but were unable to stop in time’; and the applicant ‘held a probationary licence and was relatively inexperienced, which increases the need for [him] to be alert and careful’. The judge assessed the applicant’s moral culpability as ‘low’.[17]
[17]Reasons, [41]–[42].
Significantly, the judge discussed the applicant’s PTSD and ‘fragile mental health’, finding it to be ‘disabling and chronic’, such that it will make any time in custody ‘significantly and considerably more burdensome’ for him.[18] The judge then made the finding referred to above that the provisions of s 5(2H)(c)(ii) of the Sentencing Act 1991 were engaged.[19]
[18]Reasons, [43]–[50].
[19]At [16].
Moreover, with respect to Verdins considerations, the judge observed:[20]
In my view, principle 5 is relevant, although there are additional reasons why you would likely find custody more onerous, including your youth. There is a real risk imprisonment will have a significant adverse effect on your mental health, as there is a high probability some PTSD symptoms will re-emerge, and I take this into account by way of mitigation.
[20]Reasons, [51].
The judge also discussed at length the applicability of the provisions of s 5(2H)(e),[21] and concluded:[22]
As the Court of Appeal recently made clear, the requirement set by s 5(2H)(e) is almost impossible to satisfy.[23] This case concerns a young, male, probationary driver, driving without proper care and attention such as to make his driving dangerous to the public. In my view, there are not ‘substantial and compelling circumstances that are exceptional and rare’.
[21]Reasons, [52]–[54].
[22]Reasons, [55].
[23]Buckley v The Queen [2022] VSCA 138, [3], citing DPP v Bowen [2021] VSCA 355, [11].
Turning to charges 2 and 3, the judge observed that the applicant’s offending was ‘serious’. He ought to have known that the man he hit was seriously injured. The judge accepted, however, that, at the moment he struck the victim, and in the seconds between that moment and his decision to leave, the applicant ‘experienced a dissociative reaction as a result of [his] undiagnosed PTSD’.[24] She said:[25]
In my view, at the moment you decided to leave the scene, your capacity for calm, rational decision-making was impaired. In this way, your moral culpability is reduced. General deterrence is also moderated, given the impact of your PTSD on your mental state both at the time of the offending and as at the date of sentence. The application of principle 4 has no meaningful impact on the sentencing task, given my finding that specific deterrence is already not a significant sentencing purpose here. Across all charges, your PTSD and the likely impact of custody on your mental health, means principles 2, 5 and 6 of Verdins are relevant to sentence.
[24]Reasons, [56]–[60].
[25]Reasons, [61].
Finally, the judge noted that Corrections had provided a report which supported a non-custodial sentence.[26] Ultimately, however, she observed:[27]
There are substantial mitigating matters here, including the value of your guilty plea, your remorse, your PTSD and the application of Verdins. However, you have committed three serious offences. Just punishment, denunciation and general deterrence must be reflected in the overall sentence you receive. The offence of dangerous driving causing death is often committed by persons who are young, have no prior convictions and exhibit genuine remorse.[28] The objective gravity on charges two and three is high and deserving of immediate imprisonment, notwithstanding your reduced moral culpability and mitigating factors. In all the circumstances, I have determined the appropriate outcome is to sentence you to a term of imprisonment on each charge, to be followed by a therapeutic community correction order on all charges, assuming you consent to the order.
[26]Reasons, [64].
[27]Reasons, [65] (citation as in original).
[28]DPP v Neethling (2009) 22 VR 466.
Ground 1 contains two intersecting propositions: first, that the individual sentences imposed and order for cumulation, are manifestly excessive; and, secondly, that any term of imprisonment was wholly outside the range. As we have said, counsel for the applicant submitted that the only reasonable sentencing option available to the judge was a CCO, without an associated period of imprisonment, having regard to a variety of factors.[29]
[29]See [17] above.
We disagree. In our view, the individual sentences of imprisonment – coupled with a CCO – are lenient, as is the order cumulating only two months of the sentence on charge 1 upon the sentence on charge 2 (the sentence on charge 3 being wholly concurrent). The resulting total effective sentence is extremely moderate, and well within the range of sentences open to the judge in the sound exercise of the sentencing discretion.
Traversing well-trodden ground, it was said in Leimonitis:[30]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[31] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[32] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[33] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[34]
[30]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) (citations as in original).
[31]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]–[52].
[32]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[33]Ibid.
[34]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
We consider that the apparent leniency of the sentence reflects the fact that the judge must have given due weight to features in mitigation, in particular, his youth and fragile mental health. Indeed, we do not regard it to be reasonably arguable that any component of the sentence is manifestly excessive.
Under cover of ground 2 – which asserts that the judge erred in failing to find the exception in s 5(2H)(e) of the Sentencing Act 1991 established – counsel for the applicant submitted in writing that, whether an exception under s 5(2H) of the Act was engaged on charge 1, ‘is not discretionary, it is evaluative, and minds might reasonably differ on a conclusion’. To succeed on this ground, counsel conceded, ‘it is necessary to demonstrate that the conclusion reached was not reasonably open or that it involved some error of fact or law’. Counsel submitted that the judge erred in her remarks concerning the application of s 5(2H)(e), which unreasonably relegated the applicant’s circumstances to ‘run of the mill’.[35] The circumstances that made the present case uncommon include: the ‘particularly low objective gravity of the offending in charge 1; low moral culpability; high value of the plea; genuine remorse; youth and corresponding primacy of rehabilitation; lack of priors; debilitating experience of PTSD for the majority of the applicant’s life and the likely substantial impact that jail will have on him because of that diagnosis’. Hence, counsel submitted, ‘the only reasonable conclusion was to find this combination, substantial and compelling, exceptional and rare’.
[35]See [27] above.
We would not uphold ground 2, principally for two reasons. First, we are unable to detect any error in the judge’s approach to the legislative constraints imposed by s 5(2H)(e). Indeed, we consider that the judge engaged in a thorough and careful analysis, paying due regard to the individual circumstances of the case.
Secondly, even were we of the opinion that the judge should have found that the provisions of s 5(2H)(e) were animated, such a finding could have had no practical implications for the applicant’s sentence. Both sub-s (2H)(e) and sub-s (2H)(c)(ii) are concerned to provide circumstances in which a mandatory term of imprisonment, without a CCO, might be avoided. The judge found the provisions of sub-s (2H)(c)(ii) to be applicable. It is difficult to see that the judge’s failure to find sub-s (2H)(e) also to be applicable could have had any additional relevance to the imposition of sentence.
Leave to appeal against sentence will be refused.
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