Ayse Laz v The Queen
[2022] VSCA 160
•16 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0188 |
| AYSE LAZ | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T Forrest and Kennedy JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 August 2022 |
| DATE OF JUDGMENT: | 16 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 160 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1986 (Judge Quin) |
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CRIMINAL LAW – Appeal – Sentence – Driving offences, including culpable driving causing death, theft, and drug possession offences – Total effective sentence 11 years 6 months – Non-parole period 6 years 6 months – Where judge mistook maximum penalty for dangerous driving while pursued by police – Where applicant sentenced to maximum penalty – Mitigating factors in existence include youthful offender and early plea – Error conceded – Leave to appeal granted – Appeal allowed – Total effective sentence 10 years 6 months – Non-parole period 5 years 10 months.
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| Counsel | |||
| Applicant: | Dr M Fitzgerald | ||
| Respondent: | Ms D I Piekusis QC | ||
Solicitors | |||
| Applicant: | Doogue + George Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
T FORREST JA
KENNEDY JA:
On 11 November 2021 the applicant pleaded guilty in the County Court to six charges (on indictment L12518119) relating to a series of incidents which occurred in October 2020, and which included the charge of culpable driving causing death. She also pleaded guilty to three related summary offences.
On 24 November 2021, the applicant was sentenced as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Theft of a motor vehicle | 10 years | 12 months | Nil |
| 2 | Dangerous driving while pursued by police | 3 years | 3 years | 18 months |
| 3 | Culpable driving causing death | 20 years | 9 years | Base |
| 4 | Negligently cause serious injury – motor vehicle | 10 years | 3 years | 6 months |
| 5 | Failing to stop and render assistance | 10 years | 2 years | 6 months |
| 6 | Possession of drug of dependence (methylamphetamine) | 1 year or 30 penalty units | 1 month | Nil |
| Related Summary Offences | ||||
| 8 | Drive whilst authorisation suspended | 240 penalty units or 2 years | 1 month | Nil |
| 10 | Commit indictable offence whilst on bail | 30 penalty units or 3 months | 1 month | Nil |
| 25 | Contravene conduct condition of bail | 30 penalty units or 3 months | 1 month | Nil |
| Total Effective Sentence: | 11 years 6 months | |||
| Non-Parole Period: | 6 years 6 months | |||
| Pre-sentence Detention Declared: | 396 days | |||
| Section 6AAA Statement: | 14 years 6 months’ imprisonment, with 9 years 6 months non-parole | |||
| Other Relevant Orders: 1. All Victorian licences cancelled and disqualified for 7 years from date of sentence 2. Forfeiture and disposal orders | ||||
The applicant now seeks leave to appeal against sentence on the following two proposed grounds:
Ground 1: The sentencing discretion on charge 2 miscarried as the learned sentencing judge mistook the maximum penalty of dangerous driving while pursued by police contrary to s 319AA(1) of the Crimes Act 1958 (Vic), as being 10 years’ imprisonment, rather than 3 years’ imprisonment.
Ground 2: The sentence on charge 2 was manifestly excessive having regard to:
(a)The correct maximum penalty
(b)The plea of guilty;
(c)The applicant having spent her time on remand in onerous conditions;
(d)Remorse;
(e)Youth;
(f)Prospects of rehabilitation;
(g)The applicant’s difficult and traumatic upbringing.
At the hearing of the application, the respondent conceded that the error as alleged by ground 1 was made, and that it was a material error.
In such circumstances, the applicant conceded that it was unnecessary for this Court to also consider ground 2 (the applicant only alleged manifest excess in relation to charge 2).
We have accordingly granted leave to appeal, allowed the appeal, and resentenced the applicant in accordance with the reasons, below.
Circumstances of the offending
The six offences which occurred on 24 October 2020 related to a single prolonged incident with multiple different aspects. The sentencing judge summarised the offending as follows:
You, Adam Doyob and Penil Kok, were involved in a robbery against a mobile hairdresser who was attending your house. Mr Doyob, was the main participant in that offending, however ultimately, you stole that victim’s car and drove off with Ms Kok through Meadow Heights. Police had been alerted to that robbery and commenced following you in an unmarked car and attempted to intercept you.
You did not stop and accelerated away. This driving was the commencement of your conduct or driving constituting Charge 2. You drove over a raised concrete divider, onto the wrong side of the road, and around three stationary cars. You then drove into an intersection against a red traffic light, across three lanes of traffic and turned right onto Pascoe Vale Road.
Victoria Police Air Wing had commenced aerial surveillance of your car. You started to panic having seen the helicopter and police behind you and you accelerated, driving effectively as fast as you could. Between 6.38 pm and 6.54 pm or approximately 15 minutes, you drove through Meadow Heights, Broadmeadows, Dallas, Campbellfield, Fawkner, Pascoe Vale, Brunswick and Flemington, before entering the CityLink at Moreland Road. You drove whilst exceeding the speed limit, travelling up to 140 kilometres an hour in a 70 km zone, disobeying or running eight red lights and overtaking other vehicles in an unsafe manner.
As to your circumstances regarding Charge 3, 4 and 5. At 6.54 pm, you exited CityLink and proceeded towards the central business district of Melbourne. You continued to drive erratically in the city on tram tracks and through red lights. This was particularly dangerous, given there were a number of people around, as it was grand final day.
You were using your mobile phone, talking to a friend whilst driving. Unfortunately, two people just happened to be in this vicinity. Mr Carshen Chow a 36 year old Malaysian student was riding his scooter carrying out delivery duties, and Mr Bing Hong Tran a 64 year old builder, was crossing at a pedestrian crossing near Flagstaff Gardens.
You continued to drive in that dangerous and erratic manner as described above. You swerved to avoid cars on King Street, before immediately colliding with Mr Chow’s scooter. He was dislodged from his seat and he became air borne. His head impacted with the passenger side of your roof and he was thrown over it onto the road, suffering catastrophic and fatal injuries. The impact was such, that the scooter rotated and travelled along with the debris throughout the intersection.
After hitting the scooter, you immediately swerved right and struck Mr Tran on the left-hand side of his body as he was crossing Latrobe Street. The impact caused Mr Tran to fall face first onto the road in the middle of the tram tracks in the centre of Latrobe Street. He was thrown to the ground and was unable to stand up or move off the road.
You did not stop and render assistance to either victims. Rather, you accelerated and headed towards Docklands. Other witnesses called triple 0, additionally police had been observing your driving from the police helicopter and CCTV footage at the intersection.
Your driving included as part of Charge 2 then continued. You drove at a fast speed and proceeded through three red lights in the CBD. You then travelled to Altona North, Brooklyn, Ardeer, Sunshine North, Keilor East and Airport West before exiting the Western Ring Road at Pascoe Vale Road Jacana.
You were exceeding the speed limit and disobeyed three more red lights, continued to drive erratically and dangerously, whilst continuing to talk on your phone.
At about 7.20 pm, police caught up with you and activated their emergency lights. You did not stop and continued driving in this dangerous manner. Ultimately, the police orchestrated a collision with you, so that you were unable to continue as your car was pinned in a position and unable to be moved.
You then ran from your car and were chased by police, though you were ultimately caught and arrested.[1]
[1]DPP v Laz [2021] VCC 1986, [7]–[18] (‘Reasons’).
Mr Chow was taken to hospital via ambulance, but was unable to be revived. A post-mortem found that Mr Chow’s death was caused by chest injuries sustained as a result of the collision. Mr Tran was also taken to hospital via ambulance, and was found to have suffered injuries to his arms, left foot, knee and leg. He required intensive physiotherapy and was unable to walk without the aid of crutches for three weeks after the collision. His rehabilitation for one of his injuries was ongoing at the time of sentencing.[2]
[2]Ibid [24]–[25].
A blood sample taken from the applicant was found to contain .31 megalitres of methylamphetamine and .11 megalitres of amphetamine.[3] A body search was conducted by police on the applicant, and two Ziplock bags containing methylamphetamine were located (charge 6).[4]
[3]Ibid [21].
[4]Ibid [20].
In terms of the related summary offences, at the time of the offending, the applicant’s learner permit had been suspended for speeding, and the applicant was on bail for nine separate criminal matters involving multiple serious driving, drug assault and deception offences. One of the conditions of bail was that the applicant would not drive without a valid licence.[5]
[5]Ibid.
Applicant’s background
At the time of the offending, the applicant was 21 years of age. She was thereby a young offender.
The applicant is the eldest of seven children, all born in Australia. Her mother was born in Turkey and her father was born in Lebanon. The applicant completed schooling to Year 11 and had various jobs during that time in hospitality, however her father became ill and she was unable to continue to either work or go to school.[6]
[6]Ibid [32]–[33].
The applicant reported a reasonably happy early childhood, but became more aware of family violence between her parents as she reached adolescence. The applicant was also subjected to physical abuse by her father, though she remained close to him. When the applicant was aged around 12, her father was incarcerated for domestic violence related offending, and the applicant went to live with her grandparents for a period of about three months before returning home when he was released. The applicant’s parents both engaged in drug use and this impacted on their ability to parent.[7]
[7]Ibid [34]–[36].
When the applicant was 18, her father was diagnosed with cancer, and later died. Shortly after his death, the applicant’s mother left the house for a number of weeks, abandoning the applicant and her siblings. The applicant was unable to continue school or work, and four of her siblings were placed in the care of the Department. The applicant tried to get care of those siblings, attempted to organise the house and encouraged her mother to fight for the children, but by late 2019 realised her siblings would not be returned. The applicant turned to drugs as a coping mechanism. The applicant’s drug use was ongoing at the time of the offending.[8]
[8]Ibid [38]–[40].
In terms of relevant criminal history, the applicant had no prior convictions, though she had appeared in court in September 2019, and was required to enter an undertaking which was breached (and she received a fine). The applicant also had a prior driving offence for speeding and had lost her learner’s permit to drive. At the time of sentencing, the applicant had a number of outstanding matters relating to dangerous driving, drugs, theft, burglary and bail offences. All but one of those related to allegations occurring after the removal of her siblings in November 2019.[9]
[9]Ibid [45]–[46].
Sentencing remarks
The judge recorded that the applicant had pleaded guilty to these charges at the earliest opportunity. The judge noted the utilitarian value of the plea, particularly in light of the COVID-19 situation, having regard to the impact on the Court and the administration of justice in Victoria.[10]
[10]Ibid [49].
The judge found that the applicant’s plea was consistent with remorse, and accepted that the applicant had a high level of remorse for her conduct.[11]
[11]Ibid [51].
The judge found that the applicant’s moral culpability and the objective gravity of the offending was high.[12] In particular, the judge noted that the applicant’s conduct in respect of charge 2 placed numerous other road users, her passenger, pedestrians and members of the police force at ‘significant risk’,[13] and that her driving was ‘extremely dangerous’ and ‘demonstrated a complete disregard for the safety of others’.[14]
[12]Ibid [52].
[13]Ibid [54].
[14]Ibid [55].
The judge considered the applicant’s rehabilitation prospects to be ‘reasonable’, but dependent upon the applicant addressing her drug use.[15]
[15]Ibid [62].
The judge took into account the situation concerning COVID-19 insofar as it has, and still continues to, impact on conditions in custody. The judge noted that the applicant had been placed in protective custody since September 2021, and that the applicant’s conditions in custody were more onerous as a result.[16]
[16]Ibid [63].
The judge considered that general deterrence was the principal consideration for serious driving offences. The judge noted that denunciation, protection of the community and just punishment were also important, and that specific deterrence had a lesser role to play given the applicant’s limited criminal history and rehabilitation prospects.[17]
[17]Ibid [64]–[65].
The judge acknowledged that the applicant was a youthful offender, though considered that the seriousness of this kind of offending and need for general deterrence should result in factors such as youth being afforded less weight in sentencing than they normally would.[18]
[18]Ibid [66].
The judge acknowledged the applicant’s difficult and traumatic background, and accepted that the applicant’s moral culpability for this offending should be viewed through the disadvantaged upbringing and background that she endured. The effect on her of this disadvantage was to be accorded weight.[19]
[19]Ibid [67]–[68].
The judge identified that all the charges related to a single prolonged incident with multiple different aspects such that she had considered the principles of totality.[20]
[20]Ibid [72].
Correspondence from the judge
By letter addressed to the presiding judge of the Court of Appeal dated 7 June 2022, the sentencing judge advised that, having been made aware of the correct maximum penalty in respect of charge 2, the individual sentence of 3 years ‘would have been reduced,’ though the total effective sentence would ‘not have been different’.
Ground 1
Submissions
The applicant emphasised that she had been sentenced to the maximum penalty available (3 years) despite her plea of guilty and other mitigating factors. This was to be compared with the sentences she received on the other charges which were well short of the applicable maximum penalties.
In oral submissions, counsel invited the Court to take into account a number of mitigating factors in resentencing, including her plea of guilty (which was entered in a COVID-19 environment), her youth, and her limited criminal history. These mitigating factors justified a reduction in the individual sentence, as well as the total effective sentence and non-parole period.
As indicated already, counsel for the respondent made a number of concessions as follows:
•that the judge sentenced the applicant in the mistaken belief that the maximum penalty applicable to charge 2 was 10 years’ imprisonment rather than 3 years;
•that the error was a material one;[21] and
•that given the sentence was to be reduced, the amount of cumulation (and thereby the total effective sentence) would also be altered to ensure proportionality.
[21]This was contrary to a submission that had been advanced in the respondent’s written case at [4.3]–[4.7].
These concessions were appropriate. With respect to the judge, given the large discrepancy involved, the appropriate alteration to the sentence on charge 2 would inevitably have an impact on the amount of cumulation and total effective sentence.
Nevertheless, counsel for the respondent highlighted the objective gravity of the offending. She relied upon the video footage of the incident, which evidenced some 45 minutes of dangerous driving, including both prior to, and after, the collision with Mr Chow’s scooter.
Analysis
We accept that the offending was, objectively, very serious indeed. It constituted extremely dangerous driving over a prolonged period of time which led to tragic consequences. The judge was correct to highlight the principles of general deterrence, denunciation, and protection of the community.
However, the judge accepted that the moral culpability for the offending was to be viewed through the disadvantaged upbringing and background the applicant had endured.
There were also a number of other very important mitigating factors. These included the applicant’s youth, her prospects of rehabilitation, the early plea (which has greater weight in a COVID-19 environment[22]), her high level of remorse, and her limited criminal history.
[22]Worboyes v The Queen (2021) 96 MVR 344, 356–7 [39] (Priest, Kaye and T Forrest JJA); [2021] VSCA 169.
Given these features, a sentence substantially less than the (correct) maximum is warranted in relation to charge 2. Such an approach is also consistent with the judge’s approach with respect to the other individual sentences. By way of example, there was a reduction of 90 per cent in respect of the maximum applicable to charge 1. Even with respect to the most serious offence, charge 3, the judge made provision for more than a 50 per cent reduction.
In all the circumstances, we would impose a sentence in respect of charge 2 of 12 months’ imprisonment with cumulation of 6 months, giving a total effective sentence of 10 years and 6 months’ imprisonment.
Consistent with the applicant’s youth and prospects for rehabilitation, the judge made provision for a relatively low non-parole period. Utilising a similar approach, a non-parole period of 5 years and 10 months’ imprisonment is appropriate.
The applicant will therefore be resentenced as follows:
| Charge on Indictment | Offence | Sentence | Cumulation |
| 1 | Theft of a motor vehicle | 12 months | Nil |
| 2 | Dangerous driving while pursued by police | 12 months | 6 months |
| 3 | Culpable driving causing death | 9 years | Base |
| 4 | Negligently cause serious injury – motor vehicle | 3 years | 6 months |
| 5 | Failing to stop and render assistance | 2 years | 6 months |
| 6 | Possession of drug of dependence (methylamphetamine) | 1 month | Nil |
| Related Summary Offences | |||
| 8 | Drive whilst authorisation suspended | 1 month | Nil |
| 10 | Commit indictable offence whilst on bail | 1 month | Nil |
| 25 | Contravene conduct condition of bail | 1 month | Nil |
| Total Effective Sentence: | 10 years 6 months | ||
| Non-Parole Period: | 5 years 10 months | ||
| Pre-sentence Detention Declared: | 661 days | ||
| Section 6AAA Statement: | 13 years’ imprisonment, with 8 years 6 months non-parole | ||
| Other Relevant Orders: 1. All other orders of the County Court are confirmed | |||
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