Legal Research
Cases
Khoja v The Queen

Khoja v The Queen

Case [2014] VSCA 9 13 February 2014

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0027

RIYAZ KHOJA	Appellant
	v
THE QUEEN	Respondent

---

JUDGES	MAXWELL P, NETTLE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 October 2013
DATE OF JUDGMENT	13 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 9
JUDGMENT APPEALED FROM	DPP v Khoja (Unreported, County Court of Victoria, Judge Taft, 19 October 2012)

---

CRIMINAL LAW – Appeal – Sentence – Culpable driving causing death, negligently causing serious injury (4) – Sentence of 8 years and 6 months, non-parole period of 5 years and 6 months – Plea of guilty – Remorse – Stress disorder developed in response to offending – No impairment of mental functioning at time of offence – Whether reactive mental condition required moderation of general or specific deterrence – Whether reactive condition constituted injury sustained during offending – No sentencing error – Appeal dismissed – R v RLP (2009) 213 A Crim R 461 applied – Sentencing Act 1991 (Vic) s 5(2)(g).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C B Boston	Tony Danos Lawyers
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
NETTLE JA
PRIEST JA:

Riyaz Khoja pleaded guilty to one charge of culpable driving causing death, an offence carrying a maximum penalty of 20 years’ imprisonment. He also pleaded guilty to four charges of negligently causing serious injury, an offence which carries a maximum penalty of 10 years’ imprisonment.

He was sentenced to an aggregate term of imprisonment of 8 years and 6 months. A non-parole period of 5 years and 6 months was fixed. He now appeals, by leave, against that sentence.

All three grounds of appeal concern the stress disorder and associated depression which Mr Khoja developed following the accident. According to the expert evidence, this condition developed as a direct response to the accident, reflecting Mr Khoja’s guilt and shame and his feelings of responsibility for the grievous consequences of his driving.

For reasons which follow, we have concluded that this reactive mental condition, though severe:

(a) did not require any moderation of general or specific deterrence; and

(b) was not an injury sustained in the course of the offending, such as might otherwise have instituted past punishment.

The appeal must therefore be dismissed.
Circumstances of the offending[1]

[1]Paragraphs 5–10 are based on the Registrar’s neutral summary.

Late on the evening of 16 November 2010, Mr Khoja went out with friends to celebrate his planned return to India the following day. He drank four or five stubbies of full-strength beer. Early the following morning, he and his friends went to a hotel in the city. They travelled in a Ford Falcon owned and driven by Mr Khoja’s friend, Nihil Patel. During the drive, Mr Khoja repeatedly asked Mr Patel if he could be allowed to drive the Ford. They purchased more beer at the hotel and then Mr Patel agreed to let Mr Khoja drive the car on the trip…

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 Khoja v The Queen

Details

AGLC: Khoja v The Queen [2014] VSCA 9
Case: [2014] VSCA 9
Decision Date: 13 February 2014

CaseChat Overview and Summary

The appellant, Khoja, was convicted of culpable driving causing death and negligently causing serious injury. He appealed against the sentence of eight years and six months imprisonment, with a non-parole period of five years and six months, imposed by the County Court of Victoria. The appellant, who had pleaded guilty to the charges, argued that the sentence should be reduced because of the impact of reactive stress disorder, which developed in response to his offending. The Court of Appeal considered the legal issues of whether the reactive mental condition required moderation of the sentencing principles of general or specific deterrence and whether the reactive condition constituted an injury sustained during the offending.

The Court of Appeal held that the reactive stress disorder did not require moderation of the sentencing principles of general or specific deterrence because the appellant had not been suffering from a mental impairment at the time of the offence. The court also held that the reactive condition did not constitute an injury sustained during the offending because it was a consequence of the appellant's offending rather than a direct result of the act itself. The court applied the principles set out in R v RLP and held that there was no error in the sentencing process. The appeal was dismissed.

The Court of Appeal did not alter the sentence imposed by the County Court. The appellant's appeal was dismissed, and the original sentence was upheld. The court found that the sentence was appropriate and reflected the seriousness of the offending. The court also noted that the appellant had shown remorse for his actions and had taken steps to address his reactive stress disorder. However, these factors did not warrant a reduction in the sentence.

Orders