Jones v The King
[2023] VSCA 167
•20 July 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0113 |
| KAYNE JONES | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 July 2023 |
| DATE OF JUDGMENT: | 20 July 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 167 |
| JUDGMENT APPEALED FROM: | DPP v Jones [2022] VCC 1446 |
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CRIMINAL LAW – Appeal – Sentence – Reckless conduct endangering persons and recklessly causing injury – Appellant deliberately drove motor vehicle at pedestrians – Total effective sentence three years and three months’ imprisonment with two years and three months non-parole – Whether sentence manifestly excessive – Appeal dismissed.
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| Counsel | |||
| Appellant: | Mr C Farrington | ||
| Respondent: | Ms K Hamill | ||
Solicitors | |||
| Appellant: | Emma Turnbull Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
MACAULAY JA:
Introduction
On 11 July 2022, the appellant, now aged 41 years,[1] pleaded guilty before a judge in the County Court to reckless conduct endangering serious injury[2] (charge 1) and recklessly causing injury[3] (charge 2). He also pleaded guilty to three relevant summary offences: failing to render assistance after an accident[4] (summary charge 3); using an unregistered motor vehicle[5] (summary charge 5); and committing an indictable offence whilst on bail[6] (summary charge 6).
[1]His date of birth is 8 April 1982.
[2]Crimes Act 1958, s 23. The maximum sentence is five years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum sentence is five years’ imprisonment.
[4]Road Safety Act 1986, s 61(1)(b). The maximum sentence is eight months’ imprisonment.
[5]Road Safety Act 1986, s 7(3)(a)(ii). The maximum sentence is 50 penalty units.
[6]Bail Act 1977, s 30B. The maximum sentence is three months’ imprisonment.
Following a plea in mitigation, on 26 July 2022 the judge sentenced the appellant to be imprisoned for two years and four months on each charge on the indictment; to two days’ imprisonment on summary charge 3; to two months’ imprisonment on summary charge 6; and to a fine of $200 on summary charge 5. The judge ordered that 10 months of the sentence on charge 1, and one month of the sentence on summary charge 6, be served cumulatively with the sentence on charge 2, leading to a total effective sentence of three years and three months’ imprisonment, upon which the judge fixed a non-parole period of two years and three months.[7] (Additionally, the judge cancelled all drivers’ licences held by the appellant, and disqualified him from obtaining a licence for two years.)
[7]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have imposed a total effective sentence of four years and seven months’ imprisonment, with a non-parole period of three years and four months.
On 9 February 2023, a judge of this Court granted the appellant leave to appeal against his sentence on a ground that contends that:
(i) the individual sentences imposed on charges 1 and 2 are manifestly excessive;
(ii) the orders for cumulation between charges 1 and 2 are manifestly excessive
(iii) the total effective sentence of 39 months imprisonment is manifestly excessive;
(iv) the non-parole period of 27 months imprisonment is manifestly excessive.
In our view, for the following reasons, the appeal must be dismissed.
The offending
In March 2021, the appellant, who was on bail, was living in a unit in Churchill Avenue, Ascot Vale.
On Thursday 11 March 2021, at about 11.30 am, a male, Ali Samimi, was arguing with his girlfriend, Anahira Romana-Curry, in a grassed area beneath the appellant’s unit. The appellant shouted down at Mr Samimi. They argued and the appellant told Mr Samimi that he was ‘coming down’.
Mr Samimi and his girlfriend then walked away into an adjacent carpark. The appellant exited the building and the two men continued to argue with each other. Ms Romana‑Curry noticed that the appellant had a set of car keys in his hand. The argument abated, and Mr Samimi and Ms Romana-Curry walked away in a northerly direction along the footpath on Churchill Avenue.
As Mr Samimi and Ms Romana-Curry walked away, the appellant got into the driver’s seat of his vehicle, a 2004 Ford Falcon Sedan, which had been parked in the carpark area behind his unit. He then left the carpark and drove in the same direction that Mr Samimi and Ms Romana-Curry were walking. As he approached them, he veered his vehicle sharply to the left, mounted the kerb and drove onto the footpath directly at them.
Ms Romana-Curry screamed and jumped out of the way. Mr Samimi heard her scream and turned around to see the appellant driving straight at him. The last thing that Mr Samimi remembered was that he tried to jump out of the way. Ms Romana-Curry saw the appellant’s vehicle hit Mr Samimi, who was thrown into the air before landing on the back of his head on the ground. It appears that Mr Samimi was struck by the front passenger side of the car, and hit his head on the vehicle’s windscreen, causing the windscreen to shatter. He was thrown several meters, before landing on the nature strip. The appellant did not stop or slow down, and simply drove away. Closed circuit television (‘CTTV’) footage from a camera located at a neighbouring property — which the Court has viewed — depicts the entire incident.
Mr Samimi gained consciousness surrounded by paramedics and was taken to the Royal Melbourne Hospital. On arrival at the hospital, doctors noted swelling to his right hand and some pain in his wrist; tenderness and swelling to the right knee and ankle; and facial abrasions.
Police arrested the appellant at his unit at approximately 6.10 pm. He was interviewed and told police that: he had seen his vehicle two days previously but had not driven it for weeks; the vehicle had a single set of keys which the appellant kept in the glove box as the other set had been stolen; he had taken his partner to do a urine screen earlier that day in Footscray and then went to Moonee Ponds to do some shopping; he saw police at the scene of the incident and wondered what was going on; and he had never seen the damage to the vehicle’s windscreen. Police then executed a search warrant at the appellant’s unit. When they recommenced the interview, the appellant said that he thought that his car must have been stolen two days previously.
Mr Samimi discharged himself against medical advice the following day, 12 March 2021, and was subsequently treated at the Northern Hospital with pain medication.
The plea
The appellant’s counsel submitted to the sentencing judge that a term of imprisonment which did not exceed the time spent on remand — 487 days — was appropriate, albeit that the appellant ought to have some form of supervision upon release. It was submitted that a community correction order (‘CCO’) would provide the necessary supervision and support.
Counsel submitted that the appellant had a dysfunctional upbringing. He was placed into the permanent care of his maternal grandparents at age four, as a result of his parents’ drug addiction. Both of his parents ultimately suffered a fatal overdose. The appellant himself developed a substantial drug addiction, notwithstanding that he was raised in a loving environment by his grandparents.
The appellant’s counsel submitted that there ought to be substantial concurrency between the sentences imposed on charges 1 and 2, given that they involved the same conduct. Totality was important.
Counsel submitted that the appellant had entered an early plea of guilty during ‘lockdown’ resulting from the COVID-19 pandemic. The pandemic had meant that the appellant’s time on remand had been additionally onerous, and had resulted in him having only ‘Zoom’ or telephone contact with his two young children and partner.
The appellant’s counsel tendered two psychological reports, which contained diagnoses of Post-Traumatic Stress Disorder (‘PTSD’) and Acquired Brain Injury (‘ABI’). Counsel acknowledged that although the reports did not raise Verdins[8] considerations (summary charge 3 excepted), they remained relevant to sentencing.
[8]R v Verdins (2007) 16 VR 269 (‘Verdins’).
In response, the prosecutor accepted that it was open to the judge to impose a term of imprisonment in combination with a CCO. That was so notwithstanding the appellant’s persistent breach of CCOs. Further, given the overlap in the offending behaviour, the prosecutor conceded that there needed to be a degree of concurrency between the sentences on charges 1 and 2. Moreover, the prosecutor conceded that the appellant had entered a plea of guilty at an early stage before any evidence was called at a contested committal.
Sentencing reasons
In his sentencing reasons, the judge noted that the appellant was aged 38 years when he offended. His mother had died of a heroin overdose when the appellant was aged four. He was raised by his maternal grandparents without contact with his father. The appellant struggled to maintain attention and concentration in the classroom, and was suspended from secondary school on a number of occasions as a result of behavioural issues and fighting. Although the appellant commenced an apprenticeship as a plumber, between the ages of 19 and 29 the appellant had large periods of unemployment, explained by his heavy illicit drug use and repeated periods of incarceration.
The judge described the appellant’s criminal history as follows:
Both of the psychological assessments tendered on your behalf diagnose you as having a substance (opioid and cannabis) use disorder. Unfortunately, as is often seen in this court, your substance use disorder appears associated with a long criminal history. Your criminal history runs to some 20 pages. You were first before the Geelong Magistrates’ Court in the Year 2000 when you were aged 18, and you have had regular court appearances in the Magistrates’ Court, and subsequent appeals in the County Court, in respect of numerous charges of burglary, aggravated burglary, various dishonesty offences, drug offences and some charges of assault. In 2009, you received an aggregate sentence of 15 months’ imprisonment in respect of charges of theft and drive in a manner dangerous. In 2004 you were sentenced to two months’ imprisonment for recklessly causing injury, with that sentence being suspended. You subsequently breached the suspended sentence. Your criminal history reveals your most recent conviction was for offences of burglary, theft and obtaining property by deception in 2018. You have in the past received a number of community based orders suspended sentences and periods of imprisonment mainly for offences of dishonesty.
Your motor traffic criminal history has also been placed before me and you have received motor traffic convictions of driving while suspended, unlicensed driving and a dangerous driving charge that also appears on your criminal history.
Furthermore, the judge said:
You are, of course, not to be punished again in respect of your prior convictions but they are relevant in me assessing your moral culpability for this offending. I regard this offending as a relatively serious example of this type of offence and I am of the view that your moral culpability for this offence was high. During the plea hearing, I viewed the CCTV footage that depicts the movement of the vehicle you were driving. It clearly depicts the car veering off the road in the direction of the two victims who at that time were walking away from you. Whatever altercation you had with Mr Samimi, it was over and the victims were walking away, completely unaware that you were about to drive towards them. It was, in my view, fortunate that neither of the victims was seriously injured.
The judge noted that the appellant has two sons, aged nine and six, from a long-term relationship. One of the children has been diagnosed with ADHD, and the other with autism. They remain in the appellant’s partner’s care, although child protection services requires the appellant and his partner to complete regular urine drug screens. The appellant’s heroin use has been controlled since 2019 by methadone.
Counsel for the appellant had tendered a psychological report from Ms Gina Cidoni, and a neuropsychological report from Dr Matt Treeby. It appears that the appellant had suffered a serious work accident in 2017, in which a forklift crushed his right leg. He was in hospital for three months and it was feared he might lose his leg. Both of the psychologists had administered a battery of psychological tests and had diagnosed the appellant as suffering from PTSD as a result of the accident. Dr Treeby additionally opined that the appellant has a mild ABI due to long-term heavy substance use, including the use of cannabis, heroin and benzodiazepines. According to Dr Treeby, the brain injury ‘has resulted in a learning and memory impairment and executive dysfunction in the areas of unstructured idea generation, verbal problem solving and divided attention’.
With respect to the appellant’s pleas of guilty, the judge said:
Your counsel … concedes that the seriousness of your offending can only result in a sentence of imprisonment. In his submission, he relied upon your plea of guilty, which whilst not entered at the earliest point in time was nevertheless entered at a relatively early stage. There is no dispute that your plea of guilty has saved the expense of a contested trial and the victims having to come to court to give evidence.
You are also entitled to an additional utilitarian benefit as a result of the plea being entered during the period of the pandemic. There are two aspects to this additional utilitarian benefit: You have relieved the significant backlog of cases in this court; and it is accepted that imprisonment served in the time period of the pandemic is likely to be more harsh than at other times because of the restrictions imposed by correctional authorities in an effort to contain the pandemic. I will take account of these additional utilitarian benefits that are conferred by your plea of guilty in the sentence I impose.
It was not submitted that your plea was to be regarded as accompanied by significant feelings of remorse in light of you telling Ms Cidoni that you accidentally drove towards the victims.
As to Verdins considerations, the judge observed:
[Counsel] sensibly does not submit that your PTSD and ABI engages the first limb of the well-known case of Verdins in relation to the indictable offences but submits that it is engaged in relation to the summary offence of failing to render assistance. I am prepared to accept this submission although it is not likely to affect the ultimate sentence to any significant extent given the maximum penalty for that offence.
There are, in my view, too many variables in terms of your prior drug use and antisocial personality traits for me to find that your PTSD and other mental health conditions had ‘causal link’, or realistic connection, to the behaviours that constitute Charge 1 and 2 on the indictment, despite the opinion of Ms Cidoni. I note that she makes no reference at all in her report to the fact that your account to her as to how the offending occurred, is not consistent with your plea of guilty. I also note that you have a significant criminal history including prior convictions for assault and dangerous driving before the forklift accident in the context where she attributes the forklift accident as the cause of your PTSD.
There seems to be some divergence between Ms Cidoni and Dr Treeby as to how your mental health will be impacted by a period of imprisonment. I accept Dr Treeby’s assessment that individuals with executive dysfunction often respond well to a structured environment, I am also of the view that your PTSD and other mental health conditions will make imprisonment more burdensome for you. I will take that into account in moderating to some extent the sentence that I impose.
The judge also considered that it was an aggravating feature of the offending that the appellant was on bail.
Finally, we note that the judge had the appellant assessed for a CCO, but — in light of his breaches of community-based orders, CCOs and suspended sentences of imprisonment — the appellant was found to be unsuitable.
The appellant’s submissions in this Court
In this Court, counsel for the appellant submitted that, having regard to the background and antecedents of the appellant; his early plea of guilty, entered during the pandemic; the maximum penalty; and the nature of the offending conduct; the individual sentences imposed on charges 1 and 2, the orders for cumulation, the total effective sentence, and the non-parole period, are all manifestly excessive. He submitted that the sentence of two years and four months’ imprisonment imposed on charge 1 is ‘too high’, in circumstances where the appellant pleaded guilty to an offence which carries a maximum penalty of five years’ imprisonment. Counsel submitted that the sentence imposed on charge 2 is ‘too high’ for the same reason. This is obviously so, counsel submitted, when the fact that this was an early plea of guilty, entered during the pandemic, is considered.
Counsel for the appellant submitted that the order for cumulation between charges 1 and 2 ‘compounds the problem’. He argued that the actus reus in relation to each charge is the same conduct. That is, the conduct on the part of the appellant which forms the basis of each offence is intentionally steering the vehicle towards Mr Samimi and Ms Romana-Curry. In those circumstances, counsel submitted, ‘too much cumulation’ was imposed, having the effect of ‘doubly punishing’ the appellant. The order for cumulation offends the principle of totality;[9] and, as a result of the order for cumulation, the total effective sentence and non-parole period are ‘too high’.
[9]Counsel cited Azzopardi v The Queen (2011) 35 VR 43, 61 [61].
Discussion
We would reject the contention that the sentence for reckless conduct endangering serious injury (charge 1) — representing 46.7 per cent of the available maximum — is manifestly excessive. The seriousness of the offence falls to be determined according to the degree of recklessness evinced by the conduct that constitutes the charge, and the nature of its foreseeable potential consequences. To deliberately drive a motor vehicle — a lethal weapon — off the road and directly at pedestrians elevates the offence to the high end of the order of seriousness, demanding the imposition of a stern sentence. Rather than considering it to be excessive, in the circumstances of this case, we regard the individual sentence imposed by the judge on charge 1 to be relatively lenient.
We would also reject the submission that the sentence for recklessly causing injury (charge 2) — once more representing 46.7 per cent of the available maximum — is manifestly excessive. In our view, the contention that the individual sentence of two years and four months’ imprisonment for recklessly causing injury is manifestly excessive is wholly unpersuasive. Rather than being excessive, the sentence is, in our opinion, lenient.
The seriousness of the offence of recklessly causing injury must be gauged not only by the injuries caused — which, fortunately, appear to have been somewhat minor — but by the manner of their infliction.[10] In that regard, the CCTV footage makes for chilling viewing. It very clearly demonstrates that the appellant blithely, and with an apparently casual and callous indifference to the safety and welfare of Mr Samimi and Ms Romana-Curry, drove his vehicle onto the footpath and directly at them. To use a motor vehicle in such a manner — with foresight that injury would probably be caused — makes the appellant’s a very serious example of the offence. Phillips illustrates that — depending on the individual circumstances of a particular case — following a plea of guilty a serious example of the offence of recklessly causing injury might attract a sentence of imprisonment equivalent to 80 per cent of the available maximum.[11]
[10]Phillips v The Queen [2017] VSCA 313, [54] (‘Phillips’); Shau v The Queen [2020] VSCA 252, [2]; DPP v Milson [2019] VSCA 55, [61] (‘Milson’); Gommers v The Queen [2021] VSCA 258, [44]; Sawyer v The Queen [2021] VSCA 282, [64]; Baroch v The Queen [2022] VSCA 90, [17].
[11]See Phillips, [51]. In that case, although the injuries inflicted fell short of the statutory definition of ‘serious injury’, they were ‘severe’, and the method of their infliction made the particular recklessly causing injury ‘an extremely serious example of the offence’. See [54].
Moreover, we cannot accept that cumulation of 10 months was excessive. To our minds, it is quite moderate. Whilst the appellant driving his vehicle off the road was conduct common to both charges 1 and 2, the charges have different elements. Hence, the risk posed to Ms Romana-Curry was not reflected in charge 2, and the injury caused to Mr Samimi was not included in charge 1. In our view, it cannot be concluded that the degree of cumulation was not a proper reflection of the separate criminality of the conduct alleged in the two charges.[12] We would reject the contentions that the appellant was ‘doubly punished’ and that the sentence imposed infringed the principle of totality.[13] The judge properly recognised the overlap between the two offences, and gave practical effect to that overlap by allowing for significant concurrency between the sentences on each charge. Insofar as the offences did not overlap, the judge was bound to give effect to that fact by an appropriate measure of cumulation between the sentences imposed. He did so.
[12]See, e.g., Phillips, where two years’ cumulation was imposed between individual sentences of four years’ imprisonment for recklessly causing injury and reckless conduct endangering serious injury.
[13]The relevant principles were discussed in Phillips [37]–[44], and we need not repeat them.
We note that, although most of it relates to crimes of dishonesty, the appellant has an appalling criminal history. Apart from multiple convictions for thefts, aggravated burglaries, burglaries, going equipped to steal and other dishonesty offences, his prior convictions include crimes of violence — unlawful assault (2001 and 2003) and recklessly causing injury (2004) — and multiple, serious driving offences — including dangerous driving (2009). On a number of occasions he has contravened community-based orders, CCOs and suspended sentences of imprisonment, and has failed to answer bail. An aggravating feature of the present offences was that he was on bail at the time of their commission.[14]
[14]See Milson, [66] (Priest and Weinberg JJA); R v Gray [1977] VR 225, 229–230 (Gillard, McInerney and Crocket JJ); R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crocket J, Fullagar and Marks JJ agreeing); R v Basso & Frazetto (1999) 108 A Crim R 392, 397–8 [21]–[26] (Chernov JA), 404–5 [57]–[63] (Charles JA); DPP v Galea and Mosut (2000) 112 A Crim R 507; R v Pop (2000) 116 A Crim R 398; Georges v The Queen [2015] VSCA 82, [31] (Priest JA, Bongiorno JA agreeing); Samuels-Orumnwense v The Queen; Osifo v The Queen [2015] VSCA 152, [110] (Priest JA, Maxwell ACJ and Redlich JA agreeing); Makieng v The Queen [2022] VSCA 52, [45] (Priest and Kyrou JJA). See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
Plainly, the appellant’s poor criminal record is highly relevant to the imposition of sentence. As the judge recognised, the appellant is not to be punished again for his prior offending. But his criminal antecedents are relevant as indicators of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, concomitantly, the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing.[15] Although the judge does not appear to have made a distinct finding about it, in light of his criminal history, we would assess the appellant’s prospects of rehabilitation as poor.
[15]R v O’Brien and Gloster [1997] 2 VR 714, 718.
Ultimately, the judge said:
The purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions, and the protection of the community. In my view, the sentence for this offending must incorporate both general and specific deterrence and considerations of protection of the community. The sentence must not be crushing upon you and I accept that a period of parole during which time your drug use can be monitored will be in the community’s interest and is likely to assist with your rehabilitation. No doubt your prospects of rehabilitation will be much greater if you can continue to successfully battle your longstanding drug addiction.
It cannot be gainsaid that both general and specific deterrence, and the need to protect the community, required adequate reflection in the sentence imposed. The appellant’s offending was outrageous. Stern punishment was called for.
As we have indicated, the appellant has failed to satisfy us that any component of the sentence is manifestly excessive. To risk repetition, we consider the sentence to err on the side of leniency. The appeal must be dismissed.
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