Mok v The Queen
[2011] VSCA 38
•17 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0776
| JOAO MANUEL PEREIRA MOK | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY and HARPER JJA and HARGRAVE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 February 2011 |
| DATE OF JUDGMENT | 17 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 38 |
| JUDGMENT APPEALED FROM | The Queen v Joao Manuel Pereira Mok (Unreported, County Court of Victoria, Judge Campton, 11 August 2009) |
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CRIMINAL LAW – Sentence – Culpable driving – Appellant pleaded guilty to one count of culpable driving causing death and one count of negligently causing serious injury – Sentencing judge failed to accord any weight to positive victim impact statements supporting the appellant – Error conceded by the Crown – Appellant re-sentenced to total effective sentence of seven years and three months with non-parole period of four years and four months – Absent guilty plea, total effective sentence of nine years with non-parole period of six years would have been imposed.
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| Appearances: | Counsel | Solicitors |
For the Appellant | Mr P G Priest QC with | Balot Reilly & Associates Lawyers |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I invite Hargrave AJA to give the first judgment.
HARGRAVE AJA:
The appellant, Joao Manuel Pereira Mok, pleaded guilty in the County Court to one count of culpable driving causing death and one count of negligently causing serious injury. The maximum penalty for culpable driving is a term of imprisonment of 20 years. The maximum penalty for negligently causing serious injury is a term of imprisonment of 10 years.
On 11 August 2009, Mr Mok was sentenced to seven years’ imprisonment on the culpable driving charge and four years’ imprisonment on the charge of negligently causing serious injury. Twelve months of the latter sentence was cumulated on the culpable driving sentence, making a total effective sentence of eight years’ imprisonment. The sentencing judge fixed a period of five years’ imprisonment before Mr Mok was eligible for parole. Pre-sentence detention of 13 days was declared under s 18(1) of the Sentencing Act 1991.
Mr Mok’s driver’s licence was cancelled and he was disqualified from obtaining another licence for a period of six years from the date of sentence.
Mr Mok raises the following grounds of appeal:
(1) In fixing the sentence, the sentencing judge erred by failing to give any weight to the attitude of forgiveness by the family of the deceased and by the person injured. As appears below, that ground of error is conceded by the Crown. Accordingly, this court must consider whether a different sentence should be imposed.
(2) The sentencing judge failed to give sufficient weight to evidence of Mr Mok’s own physical injuries and his psychological state consequent upon his offending.
(3) The sentencing judge failed to give sufficient weight to mitigating factors relied upon during the plea.
(4) In all the circumstances, the sentence was manifestly excessive.
Circumstances of offending
The offending in this case was of a most serious kind. The sentencing judge described the circumstances in the following terms:
2The circumstances surrounding these charges are that, on the evening of 7 October 2008 at around 11 p.m. you went in to the city to a pool hall and karaoke bar known as Charltons. There you met up with your girlfriend, Ms Mak, a Mr Wei Choo and a Mr Goh. You and Mr Choo went out for dinner and then returned to the karaoke bar at about midnight. Mr Choo was not drinking and he observed that you and Mr Goh were drinking scotch. He thought that you were both slightly intoxicated when he left to go home.
3After Mr Choo left, the manager at Charltons observed you with bottles of beer on your table. He later provided police with CCTV footage from the bar showing you, Ms Mak and Mr Goh leaving the premises at 4.25 a.m. You all got into your silver 2005 Subaru G2 WRX. You were the driver despite the fact that at the time you were the holder of a Victorian Driver's Licence with the zero blood alcohol limit condition. This was because you had a prior conviction for exceeding the prescribed concentration of alcohol on 31 October 2006.
4Ms Mak was the front seat passenger and Mr Goh was sitting in the back seat. You drove your vehicle along Exhibition Street and on to Batman Avenue heading away from the city. Batman Avenue at the accident site is a four lane two-way divided carriageway with the lanes being separated by a raised median strip. The collision occurred where a pedestrian crossing runs from the south to north. The road was subject to a 60 kilometre speed limit.
5At about 4.25 a.m. Mr Michael Davis, who had just finished working at the Hyatt Hotel, was standing in front of the 7-Eleven outlet near the corner of Collins Street and Exhibition Street. As he waited for a taxi he heard the sound of an engine under strain. His attention was drawn to your vehicle and he observed that your car was travelling very quickly along Exhibition Street. He described it as ‘going really fast’ and he said that the engine was going nuts and that ‘the car was flying’. Mr Davis succeeded in getting a taxi and a few minutes later he was travelling along Batman Avenue and went past the wreck of your vehicle near the Tennis Centre. He ordered his taxi to turn around and went back to the scene but there was very little he could do.
6In fact, at 4.27 a.m. your vehicle had passed under a CityLink toll gantry 290 metres north of the point of impact and it was recorded at a speed of 125 kilometres an hour. From that point there is a slight curve to the left in the roadway. It appears that you oversteered so that your vehicle had run out of control and collided with a traffic control signal pole, rotating and travelling backwards into a tree on the north side of the roadway. Photographs of your vehicle taken after the collision, show that there was virtually nothing left of the rear of your car.
7A number of people employed at the Melbourne and Olympic Parks Trust were at the scene within moments. One of them, Mr Graham, described hearing a noise, looking up and seeing debris in the air and a cloud of dust. When the dust settled he saw the wreck of the WRX vehicle and he immediately went to render assistance as did others.
8He observed that you and Ms Mak appeared to be lapsing in and out of consciousness. Mr Goh in the back seat was obviously deceased and it appeared that he had not been wearing a seatbelt. When the ambulance attended you were seen several times to put your fingers down your mouth trying to force yourself to vomit. However, you told ambulance attendants that you had been drinking on that night.
9A later inspection of your car revealed that it was in a roadworthy condition with no faults contributing to the collision. At the time of the collision it was a cold, clear, dry morning. The road was in good condition and visibility was good.
10However, a report concerning the impact upon your driving skills of your blood alcohol reading concluded that subject to your last drink being taken prior to 2.30 a.m. you would have had a blood alcohol content of [between] .180 and .195 and at the time of driving you would have been absolutely incapable of having proper control of a vehicle.[1]
[1]Reasons for sentence, [2]-[10].
Ms Mak was 27 years old at the time of the office. The sentencing judge described her injuries in the following terms:
11… Ms Mak was taken to the Alfred Hospital. A report from Dr Thomas at that hospital, reveals that she had a skull fracture and preliminary contusion, a fractured left clavicle, eight fractured ribs with associated problems. A fracture of the spine and a sub coracoids haemorrhage.
12A report from Dr Adam, a rehabilitation consultant, revealed that Ms Mak stayed at the Alfred Hospital from 8 October until her discharge to the Epworth Rehabilitation Camberwell Acquired Brain Injury Unit on 17 October 2008. Due to the severity of her closed head injury she was unable to remember the accident. She had a degree of post traumatic amnesia for 13 days. She exhibited reduced complex attention and a reduced attention with cognitive fatigue.
13Although physically she has made an excellent recovery she continued to require outpatient rehabilitation to maximise her recovery in January 2009. Complex tasks such as driving and returning to work were to be addressed in the first half of this year.[2]
[2]Ibid [11]-[13].
The deceased, Mr Goh, was only 23 years old at the time of his death. He was working as a chef in a city restaurant.
Because of the Crown’s concession concerning the first ground of appeal, it is only necessary to consider that ground.
Ground 1 – error in failing to take account of the victims’ forgiveness
In her reasons for sentence, the sentencing judge referred to evidence that the parents of the deceased, Mr Goh, had forgiven Mr Mok for his crime, and that Ms Mak had also forgiven him. Both asked the Court to exercise leniency in sentencing Mr Mok and, if possible, to avoid him being imprisoned. The sentencing judge referred to these sentiments as being irrelevant to determination of Mr Mok’s sentence. She said they were ‘not factors that can be taken into account in sentencing’.
Rightly, the Crown acknowledges that the sentencing judge made an error by failing to give any weight to the sentiments of forgiveness. In R v Skura,[3] Eames JA said that, just as a victim impact statement evidencing adverse effects upon a victim may be given weight in the sentencing process, a victim impact statement which positively expresses support for the accused, and argues for a more lenient sentence, can also be given appropriate weight.
[3][2004] VSCA 53, [13].
However, even where there are only positive victim impact statements, the weight to be attached to them in mitigation is a matter of discretion in each case. In culpable driving cases, where general and specific deterrence, and denunciation, are at the heart of the sentencing process, positive statements and support of the deceased’s family, who are properly described as victims,[4] may not carry significant weight. This is because that offence requires proof of one or more of the matters specified in s 318(2) of the Crimes Act 1958. In relation to other lesser driving offences such as negligently causing serious injury, which may result from momentary inattention, a positive victim impact statement may carry greater weight. Each case must depend upon its own facts.
[4]R v Miller [1985] 2 VR 348, 354.
In their victim impact statement, the parents of the deceased (who reside in Malaysia) stated:
To Whom It May Concern
We, Goh Siak Keung and Tan Joo Ee, parents of the deceased Nicholas, Ke Chyuan Goh, have met Joao Manuel Pereira Mok after the accident and we had lots of talks. He calls us frequently and we met each other several times in Melbourne. During our meetings we have noticed that Joao is very sad and burdened. He is very quiet, does not want to go out and depressed.
We do know the seriousness of the situation and we know that Joao has already pleaded guilty this shows us that he is very remorseful about the accident. He is suffering psychologically and physically. He has visited my son’s grave in the cemetery regularly and this shows us that he feels sad. We know that he still has treatments with psychologist because of the accident.
We hope that Joan will recover soon and no longer suffer from the accident. We hope that all families involved can have a new start and leave the past behind.
We hope that the judges can take into consideration that we hope Joao can go back to his life as soon as possible without any burden in him.
We hope that a minimal sentence is given and hopefully no jail term.
The victim impact statement of Ms Mak was in the following terms:
I, Mak Wai Sum (Fanny Mak) would like to state that I have known Joao Manuel Pereira Mok for the last five years. I have known Joao to be a respectful, polite and very willing person. I was first introduced to him by a mutual friend. Joao is a thoughtful, kind and mature person.
I have been a passenger of his vehicle in many occasions and have always felt secure and safe. He was always a very cautious and alert driver. I accept the fact that the traffic accident on the 8th October 2008, was an unfortunate accident. I hold no bad feelings, bitterness towards Joao Manuel Pereira Mok. I truly believe that this was an accident because I have known this person for quite some time, it is very unfortunate.
I do not hope to create any more remorse as he is already suffering enough due to this matter. I wish him all the best in the recovery and comfort.
I sincerely wish that no jail term is put into effect as this will only aggravate matters further.
Although some weight should be given to Ms Mak’s victim impact statement, she is obviously a friend of Mr Mok, and her description of his offending as ‘an unfortunate accident’ demonstrates that she has no real appreciation of the seriousness of his offending.
As to the victim impact statement from Mr Goh’s parents, they demonstrate knowledge of the seriousness of the offending and a commendable forgiving spirit. Contrary to the view expressed by the sentencing judge, their statement is relevant and should be afforded some weight. However, for the reasons given above, and because Mr Mok’s offending was of a most serious kind, this factor should not be accorded significant weight as a sentencing consideration.
Before turning to other mitigating factors relied upon by Mr Mok, it is necessary to state that this was a very serious case of culpable driving. At the time of the offending, Mr Mok held a Victorian Driver’s Licence with a condition that he could only drive without any alcohol in his blood. This was because Mr Mok had a prior conviction for driving with a blood alcohol content exceeding the .05 limit. That conviction was only two years before this offence, and Mr Mok’s reading on that occasion was between .07 and .099. Further, in 2004 he had his licence suspended for driving in excess of 30 kilometres per hour over the speed limit.
In circumstances where Mr Mok was prohibited from driving with any alcohol in his system, he drove his very powerful car with a blood alcohol content of between 0.18 and 0.195 (or nearly four times the legal limit) at excessive speed of approximately 125 kilometres per hour (double the relevant speed limit). He was observed shortly prior to the offence driving within the city at an extreme speed. Accordingly, principal weight must be attached to general and specific deterrence. Further, the degree of offending requires the Court to signify by its sentence the community’s denunciation of such offending. As to specific deterrence, Mr Mok’s prior driving convictions cannot ignored. However, as submitted on his behalf, his sincere remorse ameliorates this factor to some extent.
There were a significant number of mitigating factors in Mr Mok’s favour:
(1) He had a solid upbringing, is well-educated, employed and enjoys the support of a good family.
(2) He suffered significant physical injuries as a result of the crash. He will have ongoing pain and disability as a result, including the inability to return to his former employment. He has been left with cognitive difficulties, including poor concentration and memory.
(3) Prior to the crash, he had no psychological difficulties. However, since the crash he suffers from adjustment disorder with mixed anxiety, depressed mood and traumatic post-stress disorder. He takes both anti-depressant and analgesic medications.
(4) Notwithstanding his psychological condition, he has demonstrated sound insight and genuine remorse. This has caused him to be assessed as a suicide risk. A specialist psychiatrist has reported that he has experienced major depression and expressed suicidal ideation, including having a suicide plan.
(5) His physical disability, ongoing pain and psychological condition will make serving his sentence more onerous than for a person of normal health.
(6) As part of his remorse, he has given sincere apologies to Ms Mak and to Mr Goh’s family, and he regularly visits Mr Goh’s graveside in accordance with the wishes of Mr Goh’s parents (they being resident overseas).
(7) He pleaded guilty at a very early time, thus demonstrating true remorse. However, it must be said, he had little practical alternative. There was no arguable defence of any kind.
(8) Given his character and background, he has good prospects of rehabilitation. This is important for a relatively young man aged 36 years.
Section 5(2)(b) of the Sentencing Act 1991 requires a sentencing court to have regard to current sentencing practices. Regard to sentencing practices has particular relevance where, as here, there is a plea of guilty. No argument was advanced on this appeal that there should be a change to current sentencing practices for culpable driving offences.[5] The Court was referred to the Sentencing Advisory Council’s ‘Sentencing Snapshot’ for culpable driving causing death.[6] From that sentencing snapshot, it would appear that, in the relevant period, imprisonment terms for the principal offence of culpable driving ranged between two years to eight years and six months. The median and average length of sentences was five years and six months. The most common length of imprisonment imposed was six years. The median non‑parole period was three years and seven and a half months and the most common non-parole period was four years. As is to be expected, the statistics demonstrate a wide range of varying sentences, reflecting the different circumstances of each case.
[5]Cf DPP v DDJ [2009] VSCA 115, [67]-[70].
[6]Sentencing Advisory Council, Sentencing Snapshot, culpable driving causing death: sentencing trends in the higher courts of Victoria 2003-04 to 2008, No 86, June 2009.
I am satisfied that, taking all relevant circumstances into account, a different sentence should be passed on Mr Mok. A head sentence of six years and six months should be imposed for the culpable driving offence. A sentence of three years and six months should be imposed for the offence of negligently causing serious injury. Nine months of the sentence for negligently causing serious injury will be
cumulative on the head sentence, making a total effective sentence of seven years and three months. Having particular regard to Mr Mok’s genuine remorse and excellent prospects of rehabilitation, I would fix a non-parole period of four years and four months.
I would otherwise not disturb the orders made by the sentencing judge. In particular, the six year period of disqualification from obtaining another licence will remain. If Mr Mok is released from prison after the non-parole period of four years and four months, this will have the effect of him being disqualified from driving for a further 20 months.
Had Mr Mok not pleaded guilty at an early stage, I would have imposed a sentence of eight years for the culpable driving offence and four years and six months for the negligently causing serious injury offence, with 12 months cumulated upon the head sentence, making a total effective sentence of nine years. I would have fixed a non-parole period of six years.
ASHLEY JA:
I agree in the disposition proposed by my brother Hargrave and with his Honour's reasons. I wish to add two matters.
First, it is often enough said, where this Court imposes a sentence not much different from a sentence imposed at first instance, that the Court has been ‘tinkering’. It needs to be made very clear that no such comment can sensibly be made in circumstances where, as here, error by the sentencing judge was conceded and where this Court's role was to consider whether a different sentence should be passed.
The second matter is this. Where this Court is called upon to pass the sentence which, in effect, it considers was appropriate, reference to specific dispositions by the Court in other matters is unlikely to be of much help. That is because most often this Court’s task is to decide whether a sentence imposed at first
instance was manifestly excessive or in some instances manifestly inadequate. The vindication of a sentence by reference to a test of that kind says little as to what ought be considered, in the unique circumstances of a particular case, to be the appropriate sentence.
HARPER JA:
I agree with the reasons for judgment of Hargrave J and for his proposed disposition of this appeal. I also agree with the additional remarks of the learned presiding judge.
ASHLEY JA:
If you could listen gentlemen to what we propose and tell us if there is anything that appears to be wrong. The orders would be these:
(1) The appeal is allowed.
(2) The sentence passed in the County Court on 11 August 2009 is set aside.
(3) In lieu thereof the appellant is sentenced on Count 1 to be imprisoned for six years and six months and on Count 2 to be imposed for three years and six months the court directs that nine months of the sentence on Count 2 be cumulated on the sentence passed on Count 1. The total effective sentence will be seven years and three months’ imprisonment.
The court fixes a non-parole period of four years and four months’ imprisonment. The court confirms the other orders made below.
It is declared that a period of 568 days not including this day has already been served pursuant to the sentence and it is ordered that the fact of that declaration has been made and its details be noted in the records of the court.
The court states, pursuant to s 6AAA of the Sentencing Act 1991 that had the appellant been convicted after trial it would have imposed a total effective sentence of nine years’ imprisonment and that it would have fixed a non-parole period of six years. It will have recorded in the other matters section of its orders that it would have sentenced the appellant to eight years’ imprisonment on Count 1 and to four years and six months’ imprisonment on Count 2 and that, with cumulation, the total effective sentence would have been nine years’ imprisonment and that it would have fixed a non-parole period of six years.
I think that makes it palpably clear that the licence cancellation and disqualification period is preserved, that is the point of the confirmation of the other orders. I think we need not refer to it specifically. You agree, Mr Cooper?
MR COOPER: Yes, Your Honour.
ASHLEY JA: All right, so as the form, no problem, Mr Cooper?
MR COOPER: No, Your Honour.
ASHLEY JA: They are the orders we will make.
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