Legal Research
Cases
Mok v The Queen

Mok v The Queen

Case [2011] VSCA 38 17 February 2011

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0776

JOAO MANUEL PEREIRA MOK	Appellant
	v
THE QUEEN	Respondent

---

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)

---

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.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr P G Priest QC with Mr M Perry	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…

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 Mok v The Queen

Details

AGLC: Mok v The Queen [2011] VSCA 38
Case: [2011] VSCA 38
Decision Date: 17 February 2011

CaseChat Overview and Summary

Mok was the appellant before the High Court of Australia, contesting a sentence imposed by the Supreme Court of Victoria for culpable driving causing death and negligently causing serious injury. The appellant had pleaded guilty to both charges, leading to a sentencing hearing where the Supreme Court determined a total effective sentence of nine years with a non-parole period of six years. The appellant subsequently appealed to the High Court, arguing that the sentencing judge had failed to consider victim impact statements that supported the appellant. The Crown conceded this error, leading to a re-sentencing by the High Court.

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