Gardezi v The King
[2023] VSCA 297
•5 December 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0128 |
| SYED MUHAMMAD GARDEZI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL JA and KIDD AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 November 2023 |
| DATE OF JUDGMENT: | 5 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 297 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1082 (Judge McInerney) |
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CRIMINAL LAW – Leave to appeal – Sentence – Seriousness of offending – Whether finding of objective seriousness open – Where relevant driving occurred over a few minutes – Driving seriously dangerous – Few minutes a significant period when driving at speed – Absence of other aggravating factors did not preclude finding gravity above mid-range – Sentence on each charge within range – Degree of cumulation modest – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr CA Hooper | ||
| Respondent: | Mr BF Kissane KC | ||
Solicitors | |||
| Applicant: | Garde-Wilson Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
KIDD AJA:
On 19 June 2023, the applicant, now aged 29 years,[1] pleaded guilty before a judge of the County Court to dangerous driving causing serious injury[2] (charge 1) and conduct endangering persons[3] (charge 2).
[1]His date of birth is 24 November 1993.
[2]Contrary to Crimes Act 1958, s 319(1A).
[3]Contrary to Crimes Act 1958, s 23.
Following a plea, on 26 June 2023 a judge of the County Court sentenced the applicant as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Dangerous driving causing serious injury | 5 years | 8 months’ imprisonment and a 2-year Community Correction Order | Base |
| 2 | Conduct endangering persons | 5 years | 4 months’ imprisonment | 1 month’s imprisonment |
| Total Effective Sentence: | 9 months’ imprisonment and a 2-year Community Correction Order | |||
| Non-Parole Period: | N/A | |||
| Pre-sentence Detention Declared: | Nil | |||
| Section 6AAA Statement: | 14 months’ imprisonment | |||
| Other Relevant Orders: 1. Driver licence cancelled and disqualified for 18 months from 26 June 2023 | ||||
Grounds of appeal
The applicant seeks leave to appeal against sentence on the following grounds:
1. The learned sentencing judge erred in finding that the objective seriousness of charges 1 and 2 was ‘medium–high’.
2. The sentences imposed on charges 1 and 2 are manifestly excessive.
3.The learned trial judge erred in partially cumulating the sentence in respect of charge 2 upon the sentence imposed for charge 1.
Particulars
•The evidence discloses that the conduct constituting both charges occurred in the same transaction.
•The evidence does not disclose that the vehicle travelling in the opposite direction to that of the Applicant had to take evasive manoeuvres, nor the distance between the two vehicles.
•The evidence does not disclose the extent to which the occupants of the second vehicle were in fact exposed to the risk of serious injury.
•Secondary victim Mihailidis had to take evasive manoeuvres after the Applicant had collided with the tree. Mihailidis was travelling at 50 km/h at the time.
•The extent to which evasive manoeuvres were required is unclear from the statements of Mr Mihailidis and Ms Villaflor.
•The extent to which the secondary victims were put in danger is unclear such that the offending ought to have been regarded as being less serious.
•The danger posed was an immediate consequence of the conduct giving rise to charge 1.
•In all of the circumstances, it was not open to the learned trial judge to make orders for partial cumulation.
The applicant sought leave to amend his grounds so as to add ground 3. Leave to amend was opposed by the respondent on the basis that it lacked merit.
Circumstances of the offending[4]
[4]This description of the circumstances is largely drawn from the Amended Summary of Prosecution Opening, which was tendered as Exhibit A(i) on the applicant’s plea.
On Saturday 5 July 2021, the applicant drove his Ford Mustang to a lounge bar in Oakleigh. The applicant and his friend Harrison Grafanakis, aged 18 years at the time, met up with Christina Villaflor and George Mihailidis sometime between 9:00 and 10:30 pm.
Later, the applicant, Grafanakis, Villaflor and Mihailidis left the lounge bar.[5] The applicant got into the driver’s seat of the Ford Mustang, Grafanakis took the passenger seat, and they drove off. Villaflor and Mihailidis drove off in another vehicle. A short time later, Christopher Zhang and Ranjeet Singh, who both worked at the lounge bar, left the lounge bar in Zhang’s car.
[5]According to Mihailidis, they left at around 12:00 am on 6 July 2021. According to Villaflor, they left at around 11:30 pm on 5 July 2021. According to Zhang, they left at around 12:30 am on 6 July 2021.
Mihailidis and Villaflor’s journey took them south on Hanover Street, Oakleigh, which has a signed speed limit of 40 kilometres per hour. Hanover Street is a narrow street that turns into Golf Links Avenue, which has a speed limit of 50 kilometres per hour.
The applicant drove south along Hanover Street some distance behind Mihailidis and Villaflor. The applicant continued to accelerate to 103 kilometres per hour down Hanover Street towards the roundabout where Golf Links Avenue begins. Further along Golf Links Avenue, the applicant reduced his speed, driving through a second roundabout at about 45 kilometres per hour.
The applicant attempted to overtake the car in which Mihailidis and Villaflor were travelling and drove onto the opposite side of the road into the path of an oncoming vehicle. The applicant accelerated to complete the overtake and merged into the correct lane. The applicant’s car moved from 49 kilometres per hour to 82 kilometres per hour in one second when he began to fishtail. After applying the brakes the speed dropped back to 78 kilometres per hour. The applicant then applied full-throttle acceleration, reaching 89 kilometres per hour. At this point, the applicant began to lose control of the vehicle, panicked and completely depressed the accelerator whilst turning the steering wheel left to right several times. The Mustang fishtailed and mounted the gutter on the eastern side of Golf Links Avenue, travelling at approximately 93 kilometres per hour. The Mustang collided with a large tree at approximately 70–80 kilometres per hour.
Mihailidis and Villaflor stopped and tried to assist. Villaflor contacted emergency services and Mihailidis stayed at the vehicle and asked a nearby resident to help him get the applicant and Grafanakis out of the vehicle. They opened the driver’s side door and the applicant got out of the vehicle. Grafanakis appeared drowsy and to be going in and out of consciousness. Grafanakis was eventually able to crawl over the driver’s seat and was pulled out of the vehicle. They laid him down on a grassed area by the road.
Whilst Villaflor was speaking to emergency services, the applicant asked her to hang up and said ‘I might get into trouble because I’ve been drinking’. Villaflor remained on the phone.
Not long after, two other people who had also been at the lounge bar, Zhang and Singh, stopped at the scene. The applicant asked Zhang if he would take the blame for the collision. Zhang’s statement to police included the following account:
Once [the applicant] saw the cops, he asked if I could take the blame for the crash. I said I couldn’t even drive that, referring to the Mustang on my P plates … [The applicant] also asked [Singh] who was in the car with me if he would take responsibility for the crash, but [Singh] doesn’t have a licence to drive. [The applicant] asked us to tell police that one of us was driving because he was worried about being arrested for drink driving.
Emergency services attended the scene. The applicant admitted to police that he had had two beers to drink before he returned a blood alcohol concentration reading of 0.031. He told police that his vehicle had lost traction and was travelling around 65–70 kilometres per hour at the time of the collision.
Grafanakis was taken by ambulance to Monash Medical Centre where his injuries were assessed as being too serious to treat there. He was transferred to the Alfred Hospital and was found to have suffered life-threatening injuries, including:
(a)approximately 300mL of blood found in his abdomen;
(b)a large tear or perforation to the sigmoid colon;
(c)a large left-sided traumatic hernia;
(d)a mesenteric tear;
(e)a small volume hemoperitoneum;
(f)a two-column fracture of the body of the L4 vertebra; and
(g)a sternum fracture.
Plea hearing
On the first day of the plea hearing, 19 June 2023, counsel for the defence requested a Community Correction Order (‘CCO’) assessment report. That report, dated 20 June 2023, was tendered as Exhibit 1 on the second day of the plea hearing on 26 June 2023. The report assessed the applicant as suitable for a CCO.
Grafanakis declined to provide a statement to police, or a Victim Impact Statement.
During the plea, counsel for the applicant submitted that the offending was ‘not within the middle range of seriousness’. After some discussion about the objective gravity of the offending, the following exchange occurred:
HIS HONOUR: I wouldn’t class it as — I would’ve thought ‘moderate’ is probably a generous description if that’s what the prosecution have used.
DEFENCE COUNSEL: The prosecution, I think, have said… mid-range.
HIS HONOUR: Mid-range. Well, I wouldn’t object to that.
DEFENCE COUNSEL: But I said low but not lowest.
HIS HONOUR: Look, I don’t know whether I’d classify it as low in the circumstances.
DEFENCE COUNSEL: Certainly, your Honour.
Defence submissions on the plea
In both oral and written submissions, counsel for the applicant on the plea submitted the following matters in mitigation:
(a)the mitigatory effect of the applicant’s early plea, indicating remorse and having utility in sparing family and witnesses a traumatic trial;
(b)the principles set out in Worboyes,[6] given the plea was entered during the period of COVID-19;
(c)the applicant has no prior convictions and was cooperative with police by being truthful about the speed he was driving. The applicant has excellent prospects of rehabilitation given his highly educated background, his supportive partner and his ongoing employment;
(d)the applicant’s achievements since arriving in Australia at the age of 19 and his success in education and the hospitality industry; and
(e)relying on the analysis of psychologist Luke Armstrong, the applicant suffers from Post-Traumatic Stress Disorder since the offending, depression since before and after the offending and custody would be more onerous on the applicant.
[6]Worboyes v The Queen [2021] VSCA 169.
Whilst counsel for the defence did not resile from the speed at which the applicant was driving the vehicle during the offending and the seriousness of the offending occurring in a residential area, counsel submitted that the offending was not within the middle range of seriousness and drew particular attention to the short duration of the offending.
To support her contention that a CCO is the appropriate disposition for the applicant, defence counsel referred to a number of case authorities[7] and submitted that on the basis of Boulton,[8] a CCO was possible.
Prosecution submissions on the plea
[7]Bell v The Queen [2018] VSCA 281; DPP v Lombardo [2022] VSCA 204; DPP v Borg [2015] VCC 1385; Lennon v The Queen [2017] VSCA 85; Bausch v The Queen [2019] VSCA 235.
[8]Boulton v The Queen (2014) 46 VR 308; [2014] VSCA 342.
Counsel for the prosecution conceded in written submissions that a combination sentence was within range having regard to the nature and gravity of the offending, sentencing purposes and sentencing practices.
Drawing the judge’s attention to the principles in Neethling,[9] the prosecutor submitted that general deterrence must be given considerable weight and a custodial sentence is generally appropriate except where moral culpability is low.
[9]DPP v Neethling (2009) 22 VR 466; [2009] VSCA 116.
As for the applicant’s moral culpability, the prosecutor submitted that there were certain characteristics of the applicant’s driving that heightened his moral culpability and meant the gravity of the offending was mid-range, such as the presence of a passenger and the presence of two other secondary victims in the other car in close proximity.
The plea of guilty was recognised by the prosecutor to have utility, having been entered during a time of delay in the justice system occasioned by the COVID-19 pandemic.
Accepting that limb 5 of Verdins[10] was enlivened, counsel for the prosecution conceded that the evidence before the court supported the proposition that the applicant would face a more onerous time in custody.
[10]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
Sentencing remarks
After setting out the facts of the offending, the sentencing judge assessed the objective gravity of each offence as ‘placed at between medium–high’, rejecting the categorisation of the offending as mid-range by the defence and prosecution counsel.[11] Turning to the injuries of Grafanakis, the judge was satisfied that the injuries met the definition of serious injury, having regard to the hospital reports and the need to transfer Grafanakis from Monash Hospital to the Alfred Hospital and the surgery that followed.[12]
[11]DPP v Gardezi [2023] VCC 1082, [5] (‘Reasons for Sentence’).
[12]Ibid [15].
In relation to charge 2, the judge observed that the risks of danger of a serious injury from the applicant’s driving were obvious,[13] noting that the steps taken by Mihailidis allowed him to avoid contact with the applicant’s vehicle, thus preventing further consequences.
[13]Ibid [17].
It was accepted by the judge that the matters put to him on the plea had a mitigatory effect and concluded that the applicant was a good candidate for rehabilitation, taking into account his prior good character and the letter of his partner.[14]
[14]Ibid [26].
The judge ultimately considered that given the type of driving and serious injury caused in relation to charge 1, and the grave risk of serious injury in relation to charge 2, a straight CCO would not serve the required purposes of sentencing.[15]
[15]Ibid [38].
Consideration
Ground 1: The judge erred in finding that the objective seriousness of charges 1 and 2 was ‘medium–high’.
The applicant submits that it was not open to the judge to assess the gravity of the offending as ‘greater than mid-range’. In making that submission, emphasis was placed on factors that were not present in this case but are commonly associated with dangerous driving:[16] it did not occur during a period of busy or peak traffic; the applicant was not driving an unregistered or stolen vehicle; he was not intoxicated or under the influence of illicit drugs; it was not offending of long duration; and it did not involve escaping police pursuit, sleep deprivation or failing to stop.
[16]Citing R v Whyte (2002) 55 NSWLR 252, 286 [216]–[218], 287 [228] (Spigelman CJ); [2002] NSWCCA 343.
In relation to charge 2, it was submitted that the danger arose because the applicant had changed lanes and was not based on the speed of the applicant’s car.
In order to arrive at an appropriate sentence, a judge is required to bring together many variables that are relevant to sentence, some of which may point in different directions.[17] Some of those matters relate to the offence and others to the offender. In considering both the objective gravity of the particular instance of the offence and the circumstances of the offender, the judge will inevitably engage in considering questions of relativity. In R v Kilic, the High Court said:
Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty — as the offending was agreed to be here — a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called.[18]
[17]Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
[18](2016) 259 CLR 256, 266 [19] (Bell, Gageler, Keane, Nettle and Gordon JJ) (citations omitted); [2016] HCA 48.
Dangerous driving causing serious injury has a maximum penalty of 5 years’ imprisonment. That maximum penalty is the same as negligently causing serious injury and half the maximum penalty that attaches to recklessly causing serious injury. Whether driving is dangerous is an objective test which requires a breach of the proper conduct of a motor vehicle upon the road that is ‘so serious as to be in reality and not speculatively, potentially dangerous to others’.[19] For driving to be dangerous, ‘there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention’.[20]
[19]McBride v The Queen (1966) 115 CLR 44, 50 (Barwick CJ); [1966] HCA 22.
[20]Jiminez v The Queen (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) (citations omitted); [1992] HCA 14; King v The Queen (2012) 245 CLR 588, 607–8 [46] (French CJ, Crennan and Kiefel JJ); [2012] HCA 24.
In relation to charge 1, the indictment stated that the driving that led to the serious injury of Grafanakis was dangerous because the car was driving at a speed that was dangerous to the public, having regard to all the circumstances of the case. In relation to charge 2, it was alleged that the applicant engaged in conduct, namely driving a motor vehicle in the wrong lane towards an oncoming vehicle, that placed Mihailidis and Villaflor in danger of serious injury.
Although each charge referred to a specific aspect of the offending, namely speed in relation to charge 1 and moving in the wrong lane in charge 2, the driving had to be assessed in all the circumstances. We have no doubt that the applicant’s driving was dangerous and seriously so.
The relevant driving occurred over a few minutes, which in some contexts is a very short period of time, but in the context of driving a motor car at speed is a significant period. It was by no means a momentary lapse of attention. The fact that the applicant accelerated, slowed down and then accelerated using full throttle shows a level of deliberateness and foolhardiness. The speed led him to lose control of the vehicle and crash. Crossing onto the wrong side of the road in order to overtake was plainly dangerous to the occupants of the car being overtaken.
We are unpersuaded that the absence of other aggravating factors precluded the judge from assessing the gravity of the offending as greater than mid-range. That is so for two principal reasons. First, the primary focus in assessing the gravity of an offence is on what the applicant did and how he drove the vehicle, rather than on what was not present. Second, dangerous driving fits within the context of a number of possible offences relating to driving which causes serious injury. The presence of some of the factors identified by the applicant such as alcohol, evading police, or speeding on a bus road may point towards reckless conduct and bring in the potential for a different and more serious offence.
As the judge correctly observed, the driving was over a period of time, involved hard acceleration and fast speeds on a narrow tree-lined residential street at night. Further, once regard is had to the actual sentences imposed, we do not consider that the judge overstated, to an erroneous extent, the gravity of the offending.
Ground 2: The sentences imposed on charges 1 and 2 are manifestly excessive.
The applicant submits that having regard to the mitigating factors which were identified on the plea, the sentences are manifestly excessive.
We have already observed that the judge’s assessment of the gravity of the offending was open to him. Further, although the applicant had a number of mitigating factors that he could point to, including very good prospects of rehabilitation, remorse, delay and his plea of guilty, general deterrence and denunciation for dangerous driving offences, including where the offender is otherwise of good character, remain very important considerations.
Although it was submitted on the plea that a CCO should be imposed, it was accepted in this Court that a sentence of imprisonment was open to the judge. That being so, we doubt it could ever be said that in the context of this offending the total effective sentence was wholly outside the permissible range. Even without that concession, we are satisfied that the sentence on each charge was within range.
Ground 3: cumulation on charge 2
Charge 2, which was a rolled up charge, concerned the overtaking manoeuvre which the applicant executed shortly before the collision.
In argument, the applicant referred to the particulars set out under the proposed ground and submitted that there was very little additional wrongdoing associated with charge 2 that was not captured by charge 1. He submitted that it was a single course of driving, there was no evidence that the car in which Mihailidis and Villaflor were traveling required any particular evasive action and the oncoming car managed to avoid the collision without any significant risk.
It may be accepted that the prosecution summary on which the plea proceeded did not clearly demarcate the driving that the was the subject of charge 2 from that which related to charge 1. However, as the judge observed in his reasons for sentence, the risks of danger to other road users including Mihailidis and Villaflor were obvious.
In the circumstances the degree of cumulation was very modest.
Conclusion
Each of the grounds must fail and leave to appeal refused.
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