Altun v The Queen
[2014] VSCA 46
•25 March 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0178
| ALIRIZA ALTUN |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WEINBERG and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 7 March 2014 |
| DATE OF JUDGMENT | 25 March 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 46 |
| JUDGMENT APPEALED FROM | DPP v Altun (Unreported, County Court of Victoria, Judge Parrish, 27 August 2013) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant charged with dangerous driving causing serious injury – Applicant sentenced to three years and three months with non-parole period of two years – Whether sentence manifestly excessive – Applicant suffered serious acquired brain injury during commission of offence – ‘Extra-curial’ punishment – Leave granted – Appeal allowed – Head sentence confirmed – Non-parole period reduced to 14 months – No point of principle.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr P F Tehan QC | Patrick Dwyer Solicitors |
| For the Crown | Ms K Argiropoulos | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree with the orders proposed by Coghlan JA.
COGHLAN JA:
On 20 May 2013 the applicant pleaded guilty, in the County Court at Melbourne to the offences set out below:
Charge Offence
Maximum
Sentence
Cumulation
1. Dangerous driving causing serious injury 5 years 3 years Base Summary charge Driving whilst disqualified 2 years 6 months 3 months Summary charge Unlawful assault 3 months $500 fine N/A TotalEffectiveSentence: 3 years and 3 months’ imprisonment Non-ParolePeriod: 2 years s 6AAA declaration pursuant to Sentencing Act 1991: 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 9 months. Other relevant orders: Disqualified from obtaining a driver’s licence for a period of 5 years.
On 27 August 2013, the applicant was sentenced as set out above.
By Notice of Appeal dated 24 September 2013, the applicant sought leave to appeal those sentences on the following grounds:
1.The sentence for the charge of dangerous driving causing serious injury, the total effective sentence and the non-parole period are each manifestly excessive.
2.The learned sentencing judge erred in reducing the weight given to the applicant’s plea of guilty by reason of the strong prosecution case.
3.The learned sentencing judge erred in giving no real weight to remorse.
On 4 December 2013, Ashley JA refused leave to appeal and the applicant elected to have the application heard by a Full Bench.
On 7 March 2014, an application was made for an adjournment to explore whether or not a fresh evidence ground should be pursued. That application was refused.
After hearing argument on the application for leave to appeal, the Court indicated that such leave would be granted, and the appeal allowed, on the basis that the non-parole period was manifestly excessive.
The relevant facts, as set out in the Prosecutor’s summary of opening, are as follows:
Charges
1.Aliriza ALTUN (‘the accused man’) is charged with 3 offences: Dangerous Driving Causing Serious Injury (on Indictment); Driving whilst disqualified (uplifted summary charge); and Unlawful Assault (uplifted summary charge).
2. On Sunday the 15th of May 2011 the accused man spent much of the day with his friend Sahin YILMAZ. YILMAZ was the owner of a 1996 black coloured Audi sedan registered number XWT 438.
3. They had been fishing on the Maribyrnong River. They had a few alcoholic drinks and talked. The accused man was emotional and at times cried. His friend hugged him.
4. When they left Mr YILMAZ was driving. He tried to take the accused man home but he did not want to go home. He wanted to get speed. YILMAZ refused him. YILMAZ later made a statement to police that the accused man ‘He got pissed off’. They stopped the car and the accused man asked YILMA what his medicine was. They then went back to the river as the bottle could not be found in the car. They then found it in the car. The accused man drank ‘skolling’ from the bottle. YILMAZ tried to get the bottle away from him but he became abusive.
UnlawfulAssault (Section 23 Summary Offences Act)
5. YILMAZ drove from the Maribyrnong River. He saw a police car and told the accused man to put his seat belt on numerous times. He was ignored. As they travelled along Maribyrnong Road, the accused man put his hand on the hand brake and said in Turkish, ‘I’m going to break your face bad.’
6. They came to a red light at Mt Alexander Road. The accused man pulled the hand brake up. YILMAZ grabbed both of his wrists. One hand was on the hand brake and with the other he was trying to hit YILMAZ. He could not break the grip. He then head butted YILMAZ lightly causing hardly any pain. YILMAZ unbuckled his seat belt and got out of the car.
7. The accused man jumped out of the car and walked towards YILMAZ who was calling for help. The driver’s door was open on the car. The accused man ran for the open door with YILMAZ chasing him but YILMAZ fell over. The accused man got in, revved the engine and left YILMAZ grabbing at the driver’s door.
DrivingWhilst Disqualified (Section 30 Road Safety Act)
8. He drove away. The accused man was not permitted to drive a motor vehicle in the State of Victoria due to his Probationary Licence being cancelled by the Magistrates’ Court on the 21st of July 2010 and disqualified from obtaining another licence for a period of 2 years.
9. YILMAZ was approached by other motorists, Josephine WILLET and Daniel TRAPANI. WILLETT says that YILMAZ asked if she could call YILMAZ’s mobile phone which he had left in the car when the accused man drove away. She rang and spoke with the accused man. He told her his mate (ie YILMAZ) was a dog and that he could get stuffed. He told her he was ‘going to a better place.’ She took this to mean he was suicidal. They lent him a mobile phone. He called 000 to report his car stolen and said he thought the accused man was suicidal.
10.WILLETT and TRAPANI then drove YILMAZ to the Moonee Ponds Police Station and dropped him off.
Dangerous Driving Causing Serious Injury (Section 319.1A Crimes Act)
11.Later that evening at about 10.05 pm, the accused man whilst driving the Audi sedan in an easterly direction, on the wrong side of the road, along Devon Road Pascoe Vale has collided head on with a Mercedes Benz wagon registration WCN 298, which had recently parked facing west along the same road. The Mercedes was driven by Mirka CARMELLI.
12.A witness, Anita D’APRANO, was travelling along Devon Road at about 50kph, and reports immediately prior to the collision that the accused man's car overtook her car at a very fast speed on the wrong side of the road. She gave an estimate of about 150kph. She could see the stationary car of Mirka CARMELLI and watched in anticipation of the collision about to occur.
13.Mirka CARMELLI had just stopped to let her partner Mitch KARAFILI out. Her headlights were on and the engine was running. She felt a huge impact to the car. She has no recollection of seeing the impact. She recalls lying on the footpath with ambulance officers talking to her.
14.A witness, Con MATARAKIS reports he was in his driveway when he saw a small car pass at about 60 to 70kph (believed to be driven by witness Anita D'APRANO) and then saw it passed by a black car (believed to be driven by the accused man) ‘doing 150kph at least’. Both cars lights were on. Within seconds he heard a big bang.
15.Ambulances arrived and attended to both the accused man and Mirka CARMELLI. The accused man was unconscious with his left foot and ankle trapped under a pedal of his vehicle. He was conveyed to the Royal Melbourne Hospital.
16.Mirka CARMELLI (DOB 28/09/1952) was conveyed to the Alfred Hospital. Her visible injuries were:
(a) Mouth – bite mark to left lateral tongue;
(b) Groin – abrasion to the right side of the hip, with bilateral bruising (seatbelt).
17.On arrival at the hospital on management and treatment the following injuries were determined:
Abdomen
(a)Small bowel perforation repaired through an exploratory laparotomy on 17 May 2011;
(b)Anterior abdominal wall contusion with haematoma and mild mesenteric contusion;
(c)Lower abdominal bilateral abrasions and bruising due to seatbelt.
Chest
(a)Fractures to the left 3rd, 4th and 5th ribs, and right 3rd rib, treated conservatively;
(b)Cutaneous abrasions and undisplaced fractures to the sternum and a small substernal haematoma, treated conservatively;
(c)Seatbelt bruising across-chest [sic].
Pelvis
(a)Right hip graze.
18.Following emergency treatment and operation she was transferred to the Intensive Care Unit on the 17th of May 2011 where she remained until the 26th of May 2011. She was transferred to the ward for further care. On the 26th of May a bilateral pulmonary embolism was diagnosed and treated.
19.She was discharged home on the 3rd of June 2011 with home help from the hospital until 14 June 2011 with a follow up in the outpatients' orthopaedic clinic.
20.The accused man was not interviewed by police due to he being hospitalised and it being reported to police by medical staff that he had no memory of the collision. A blood sample was taken from him on the 16th of May 2011 at 12.15 am. On later analysis it was determined he had a Blood Alcohol Concentration of 0.137%.
21.Expert evidence has been obtained of a reconstruction of the collision from Acting Senior Sergeant Peter BELLION of the Major Collision Investigation Unit. He concludes that the vehicle driven by the accused man was driven at a speed range of between 151 to 167kph.
This was a very difficult sentencing exercise. The learned sentencing judge provided careful and detailed reasons.
The true complication in this case arose as a result of the injuries suffered by the applicant. His Honour made the following findings with respect to the background to the offending, and ultimately those injuries, when he said:
57.After careful consideration, I have come to the view that at the time of committing all the offences, you were in an extremely fraught emotional state and had some degree of suicidal ideation. Although there is no expert opinion expressing the view that you were in such a state at the time of the offending, I accept the submissions of your counsel (which were not opposed by the prosecution) that the following matters lead to such conclusion:
(a)Your demeanour when with your friend at the Maribyrnong river who describes you as ‘emotional’ and was sometimes crying;
(b)After leaving the river and driving your friend, Yilmaz, you placed your hand on the handbrake and said in Turkish to him ‘I’m going to break your face bad’. Furthermore, when pulled up at an intersection you pulled the handbrake up and attempted to hit Mr Yilmaz when he attempted to break your grip on the handbrake;
(c)The opinion of Josephine Willet, who spoke to you by way of mobile telephone when you were driving, that you were ‘suicidal’ on the basis that you told her that you were “going to a better place”. The same view was formed by Yilmaz who reported to the police the stolen car and that you were ‘suicidal’.
(d)The very flagrant circumstances of your driving which, as I have commented earlier, suggested that it would lead to an inevitable result.
58.In coming to such view, I am conscious that you had been drinking during the day and indeed there is no issue that your blood alcohol concentration from a blood sample taken from you on 16 May 2011 at 12.15am was 0.137 per cent.
59.Notwithstanding a lack of evidence of any formal psychiatric diagnosis, I consider that the well-known case of R v Mark Andrew Verdins [2007] VSCA 102 has application in this sense; it was made plain in that decision that the principles set out therein were not only applicable to cases of ‘serious psychiatric illness’ but also circumstances where the offender is shown to be suffering at the time of the offence from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a serious mental illness. (See Verdins paragraph [5])
60.I accept in principle the submission of your counsel that as a result of your mental state at the time of offending, your moral culpability in distinction to your legal liability is lessened. Furthermore, as a result of accepting what is generally referred to as the first principle in Verdins, I accept that the reduction in moral culpability affects the punishment that is just in all the circumstances and in particular, the need for denunciation is reduced. Furthermore, I also accept the factors of general and specific deterrence, although still operative, should be sensibly moderated in view of such mental impairment. I have taken all this into account when coming to a view as to an appropriate sentence.
61.Although I have given some weight to your early guilty pleas to each of the offences, I am conscious that the evidence against you in each of these offences was probably overwhelming. However, I do accept that there is social utility in an early plea, in that time and money are saved and such a course avoids the necessity of the victim of the collision being required to give evidence. Furthermore, I do not give much weight to any suggestion of remorse, although I well accept that given the nature of your acquired brain injury, you have no first hand memory of the circumstances surrounding the offending. Put at its highest, you have expressed the view that you are sorry that the victim suffered her injury.
62.I accept the submission of your counsel that the undoubted acquired brain injury that you have suffered as a result of the collision can be taken into account at several levels:
(a)I accept that such condition can be viewed as ‘extra curial’ punishment. I refer to R v Daetz [2003] NSWCCA 216, where the Criminal Court of Appeal stated:
“… while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.”
I also refer to the more recent decision of Chaplin v R [2010] VSCA 145, wherein the Victorian Court of Appeal stated:
“The court is required to take into account all material facts as required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a judge will give an extra-curial punishment would depend on all the circumstances of the case.”
I also note that in Fuller v R [2013] VSCA 186, wherein in Ashley JA noted that a brain injury suffered by a young accused during the course of his criminal activity could be taken into account as extra-curial punishment.
Consistent with the material tendered before me, I accept without equivocation that you have suffered an acquired brain injury as a result of the collision.
I believe this is best described by Professor Walterfang, who last saw you in June 2012, that the predominantly front brain injury in the setting of intoxication has caused a significant exaggeration of your pre-morbid antisocial traits and causes ongoing ‘poor frustration tolerance, disinhibition, poor judgment, aggression and broad behavioural discontrol’. You have been under the care essentially of your mother after the discharge from hospital and have not performed any work since the discharge. The acquired brain injury has had significant consequences for you and although such consequences may be moderated to some degree in the future by the learning of appropriate cues and medication, such condition is organic and will continue into the foreseeable future. I accept that such an injury is of some significance for a young man who is only 26 years of age and has his life before him.
(b)I also accept, consistent with the submissions made by your counsel that any term of imprisonment that you will have to serve will be ‘harder’ because of such acquired brain injury and its associated consequences. Furthermore, I accept that it is unlikely that you will be able to have access to the same degree of treatment that you have experienced to date through the auspices of the Transport Accident Commission.
(c)Furthermore, I doubt that the standard of any care that you would receive in prison would be of the same quality of that afforded by your mother who has sacrificed much in order to maintain a reasonable standard of living for you. I do note that I have been advised by the Department of Justice and in particular, the Correctional Services, that there are specialist disability units within the Victorian prison system and that placement in these units is based on a range of matters including the prison’s security rating, functional impairment and offence type.
63.I also take into account the opinion from the Department of Justice that testing would suggest that you are unlikely to reoffend. It is unclear whether such statement relates to the offence of dangerous driving causing serious injury in particular or is a statement of more general application. In any event, through your counsel you informed the court that you did not wish to drive again and it may be that the state of your acquired brain injury would prevent you legally driving ever again. Furthermore, you are a young offender and I take that into account.
64.After considering all the matters which have been put before me and acknowledging that it has been an extremely difficult task, balancing the competing factors, I have come to the view that it is appropriate that you serve a period of imprisonment for the offences and in particular the dangerous driving causing serious injury. The length of such sentence and the non-parole period have been mitigated by the various factors to which I have referred.
During the hearing of the plea, the respondent submitted that the appropriate range for the head sentence was three and a half to four and half years, with a non-parole period of two and a half to three and a half years.[1]
[1]T 41. His Honour mistakenly said the range was three and a half years to four years.[T 48(d)].
The principal offence carried a head sentence of only five years. The range was said by the prosecutor to have been arrived at after reading the reports tendered by the defence. Since the High Court decision in Barbaro v The Queen; Zirilli v The Queen,[2] it will no longer be appropriate for such ranges to be proffered. However, I cannot let the occasion pass without saying that the range submitted in the present case, having regard to the plea of guilty, and the applicant’s acquired brain injury, was inappropriate and unhelpful. This was a case which called out for consideration on its own facts. The suggested non-parole period went far beyond that which was appropriate. A sentence of four and a half years, with a non-parole period of three and a half years (the top of the Crown range) would have been burdensome and clearly beyond any reasonable bounds. I do not think that the prosecutor who gave such a range could have understood that he or she was dealing with a five year maximum sentence.
[2][2014] HCA 2.
In a thoughtful submission, counsel who appeared for the applicant on the plea argued:
MR CARR: The range, in my submission, the appropriate range, bearing all the relevant factors, is somewhere a head sentence of - and I'm thinking on my feet - a head sentence of somewhere a bit less than two years at the bottom end of the range, and approaching three years, perhaps two and a half years at the top of the range for the head sentence.
HIS HONOUR: Yes.
MR CARR: Bearing in mind obviously McNeill Brown says the limits are inexact, all those sorts of considerations, but that's the sort of head sentence. Non-parole period obviously is the minimum time that justice requires to be served in the particular circumstances. The particular circumstances here are most unusual. The damage that would be done in custody, the hardship, that even Dr Glowinski, the Crown's expert from Forensicare, knows a lot about prison, says incarceration is going to be very hard; not his words but mine.
So Your Honour would have a much broader range in terms of a non-parole period than would ordinarily be the case, and a non-parole period of as little as six months, perhaps as much as 12, if Your Honour went to the top of the range that I've postulated.
HIS HONOUR: Yes.
MR CARR: That would obviously be a most unusual proportion, but there is no such thing as a usual non-parole period and all those sorts of considerations.[3]
[3]T62-63.
That submission was never answered by counsel for the respondent.
The learned sentencing judge referred to the ranges submitted by both the prosecutor and the defence. He did not, however, address the defence submission that this was a case which called for a shorter than usual non-parole period.
His Honour did, ultimately, fix a head sentence which was slightly below the range suggested by the prosecution.
However, I am satisfied that this was a case which called for the imposition of a significantly lower than usual non-parole period. I regard the sentence imposed as being more akin to one that would have been imposed without the applicant’s acquired brain injury.
I would grant leave to appeal and, as foreshadowed, allow the appeal.
Although the head sentence was high in the circumstances I do not regard it as being manifestly excessive and confirm the head sentence imposed below. However, I would order that the applicant be eligible for parole after serving 14 months. I would confirm all ancillary orders.
Pursuant to s 6AAA of the Sentencing Act 1991, the sentence on all charges that would have been imposed but for the applicant’s guilty plea would have been four and a half years, with a non-parole period of three years.
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