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Bankal v The Queen

Bankal v The Queen

Case [2019] VSCA 171 31 July 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0178

SANTINO BANKAL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2019
DATE OF JUDGMENT:	31 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 171
SENTENCE APPEALED FROM:	DPP v Bankal [2018] VCC 1274 (Judge Pullen)

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CRIMINAL LAW – Sentence – Appeal – Failing to render assistance after motor vehicle accident in which person killed – Relevant summary offence of driving whilst disqualified – Speeding motorcyclist’s collision with unregistered motor vehicle driven by applicant – Motorcyclist suffering serious injuries causing death – Applicant failed to render any assistance – Applicant left scene shortly after collision – Others in vicinity provided assistance to injured motorcyclist – Total effective sentence of three years and four months’ imprisonment with non-parole period of 22 months – Whether duty to render assistance abrogated because failure to do so had no deleterious effect upon victim – Whether duty to render assistance subsists when others present capable of doing so – Whether moral culpability reduced – Whether sentence manifestly excessive – Leave to appeal refused – Road Safety Act 1986 s 61.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	Victoria Legal Aid
For the Respondent	Mr G Hughan	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
PRIEST JA:

At about 7.20 pm on 7 July 2017, the applicant, then aged 28[1] — who had never held a driver’s licence — drove an unregistered Holden Commodore from a service road adjacent to a Dan Murphy’s liquor store car park onto the south-bound lanes of the Nepean Highway. Very shortly afterwards, an unregistered motorcycle ridden by Ashleigh Gason, aged 21[2] — whose licence was suspended due to the accumulation of demerit points — struck the applicant’s vehicle. Police determined that, prior to impact, the motorcycle was travelling at a minimum speed of 112 kph (the applicable speed limit being 80 kph).
[1]His date of birth is 1 January 1989.
[2]His date of birth was 12 March 1996.

As a result of the collision, both the motorcycle and its rider, Mr Gason, caught fire (Mr Gason suffering injuries from which he died). Although others at the scene rendered assistance to Mr Gason by extinguishing the fire and performing CPR, the applicant did not. Within a minute or a minute and a half or so, he had left the scene.

The applicant was arrested on 8 July 2017. Almost a year later, on 27 June 2018, the applicant pleaded guilty before a judge in the County Court to an indictment that charged him with failing to render assistance after a motor vehicle accident in which a person is killed,[3] and to related summary charges of driving whilst disqualified[4] and using an unregistered vehicle on a highway.[5]
[3]Road Safety Act 1986, s 61(3). The maximum penalty is 10 years’ imprisonment (or 1200 penalty units).
[4]Road Safety Act 1986, s 30(1). The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bankal v The Queen

Details

AGLC: Bankal v The Queen [2019] VSCA 171
Case: [2019] VSCA 171
Decision Date: 31 July 2019

CaseChat Overview and Summary

The case of Bankal v The Queen involved the defendant, who was involved in a motor vehicle accident resulting in the death of the motorcyclist. The defendant failed to render any assistance and left the scene shortly after the collision, despite others in the vicinity providing assistance to the injured motorcyclist. The defendant was convicted of failing to render assistance after a motor vehicle accident in which a person was killed, contrary to section 61 of the Road Safety Act 1986. The court was required to determine whether the duty to render assistance was abrogated because the failure to do so had no deleterious effect upon the victim, whether the duty to render assistance subsists when others present are capable of doing so, whether the defendant's moral culpability was reduced, and whether the sentence was manifestly excessive. The court found that the duty to render assistance did not abrogate in the circumstances and that the defendant's moral culpability was not reduced. The sentence was not manifestly excessive and was therefore upheld. The appeal was dismissed, and leave to appeal was refused.

The legal issues before the court were whether the defendant's failure to render assistance was excused because the failure had no deleterious effect on the victim, whether the duty to render assistance subsists when others are present and capable of doing so, whether the defendant's moral culpability was reduced, and whether the sentence was manifestly excessive. The court held that the duty to render assistance was not abrogated because the failure to do so had no deleterious effect upon the victim. The court found that the duty to render assistance subsists even when others are present and capable of doing so. The court also found that the defendant's moral culpability was not reduced. The court held that the sentence was not manifestly excessive and was therefore upheld. The appeal was dismissed, and leave to appeal was refused.

The court's reasoning was that the defendant's failure to render assistance was not excused because the duty to render assistance is a fundamental principle of the criminal law and is not dependent on the effect of the failure on the victim. The court found that the defendant's moral culpability was not reduced because the failure to render assistance was a deliberate decision on the defendant's part. The court held that the sentence was not manifestly excessive and was therefore upheld. The court found that the sentence was appropriate in the circumstances and reflected the seriousness of the offence. The appeal was dismissed, and leave to appeal was refused. The court's final orders were that the appeal be dismissed and that leave to appeal be refused.

Orders