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…
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- AGLC
- Mok v The Queen [2011] VSCA 38
- Case
- [2011] VSCA 38
- Decision Date
CaseChat Overview and Summary
The legal issues in this case centred on the proper consideration and weighting of victim impact statements by the sentencing judge. The appellant argued that the failure to consider these statements constituted a significant error that affected the overall sentence imposed. The Crown acknowledged this error, which required the court to re-evaluate the sentence in light of all relevant factors, including the victim impact statements.
In determining the appropriate sentence, the High Court found that the sentencing judge's failure to consider the victim impact statements was a material error. This oversight warranted a re-sentencing that properly accounted for all relevant factors. Given the appellant's guilty plea, the High Court re-sentenced the appellant to a total effective sentence of seven years and three months with a non-parole period of four years and four months. Absent the guilty plea, the High Court noted that a total effective sentence of nine years with a non-parole period of six years would have been imposed.
The High Court's final orders were to re-sentence the appellant to a total effective sentence of seven years and three months with a non-parole period of four years and four months. This re-sentencing took into account all relevant factors, including the previously unconsidered victim impact statements.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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