Mustafa Yehia v The Queen
[2015] VSCA 119
•21 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0042
| MUSTAFA YEHIA | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
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| JUDGES: | WEINBERG JA and BLUE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2015 |
| DATE OF JUDGMENT: | 21 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 119 |
| JUDGMENT APPEALED FROM: | DPP v Yehia [2015] VCC 106 (Judge McInerney) |
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CRIMINAL LAW – Sentence – One charge of dangerous driving causing serious injury and one charge of reckless conduct endangering serious injury – Applicant sentenced to 3 years’ imprisonment – Offending gave rise to breach of suspended sentence of 6 months’ imprisonment imposed some years earlier for false imprisonment – Sentencing judge restored entirety of suspended sentence and ordered that it be served cumulatively upon sentence imposed for driving offences – Sentencing Act 1991 s 83AR(3)(b) provided that a restored suspended sentence is presumed to be served cumulatively upon any sentence of imprisonment ‘previously imposed’ – Meaning of ‘previously imposed’ considered – At sentencing hearing judge pronounced restoration of suspended sentence prior to imposing sentences for driving offences – Whether as a result of order in which sentences pronounced presumption of cumulation applicable – Ground not reasonably arguable – Whether sentences manifestly excessive – Sentences clearly within range – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich | Haines and Polites |
| For the Crown | Ms S M K Borg | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WEINBERG JA
BLUE AJA:
On 24 October 2014, the applicant pleaded guilty in the County Court at Melbourne to one charge of dangerous driving causing serious injury, and one charge of reckless conduct endangering serious injury. On 3 February 2015, he was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1. Dangerous Driving Causing Serious Injury [Crimes Act 1958 s 319(1A)] 5 years’ imprisonment 2 years and 6 months’ imprisonment Base 2. Reckless Conduct Endangering Serious Injury [Crimes Act 1958 s 23] 5 years’ imprisonment 2 years imprisonment 6 months
The commission of these offences gave rise to a breach of a suspended sentence of six months’ imprisonment imposed by the same judge on 27 February 2012. The applicant was dealt with for that breach at the same time as he was sentenced for the two offences to which he pleaded guilty.
He was sentenced as follows in relation to that breach:
Charge Offence Maximum Sentence Cumulation 1. False Imprisonment [Common Law] 10 years’ imprisonment
6 months suspended sentence wholly restored 6 months Related Summary Offence Contravene Suspended Sentence Order [Crimes Act 1958 s 83AB] 3 months’ imprisonment 3 months’ imprisonment -
The net effect of all these matters is reflected in the following table:
Total Effective Sentence: 3 years 6 months Non-Parole Period: 2 years 6 months Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 65 days 6AAA Statement: The learned sentencing judge stated that, but for the plea of guilty, he would have imposed a sentence of 4 years’ imprisonment. Other relevant orders:
Pursuant to s 89 of the Sentencing Act 1991 – all licences cancelled and the applicant is disqualified from obtaining any licences for a period of 18 months
Background facts
At about 10:15 PM on Sunday 2 September 2012 the applicant was driving a Mercedes Benz motor vehicle (not his own) along Maribyrnong Road at high speed. He veered onto the wrong side of the road, forcing other drivers to take evasive action.
The applicant then drove through a T-intersection at 122 kilometres per hour, in a 60 kilometre per hour zone, again entering the wrong side of the road. He collided with a Toyota Corona being driven by Mr Michael Suckling. The Mercedes Benz then smashed into a Ford Falcon being driven by Mr James Lambrianidis, containing two passengers. The Ford Falcon was pushed into a tree. The applicant’s vehicle flipped onto its roof, and travelled further down the road.
Mr Suckling was rendered unconscious as a result of the collision. He suffered a fractured spine, fractured rib, collapsed lungs, and a subdural haematoma.
As we have previously indicated, this offending contravened a wholly suspended sentence of six months’ imprisonment, in fact imposed by the same judge on 27 February 2012, for the offence of false imprisonment. That matter involved an incident in June 2008 where the applicant was present while the 15 year old victim, who had seemingly affronted the applicant and a co-offender through an act of vandalism, had been threatened, and had his head, chest and arms marked with ‘black marker’, and a leash placed around his neck. To make matters worse, that incident had been recorded on a mobile phone camera, a fact that the judge regarded as ‘an outrageous degradation’ of the young boy’s integrity.
The applicant had prior convictions for violence, dishonesty and drug offending. He had also been dealt with in 2008 at Broadmeadows Magistrates’ Court for dangerous driving, driving whilst disqualified, and exceeding the speed limit. With regard to those driving offences, he received a sentence of four months’ imprisonment, wholly suspended, together with a fine. The applicant had breached that suspended sentence, but had been afforded further leniency, since the period of suspension had merely been extended by an additional six months.
As well, the applicant had a number of other convictions, including for driving whilst his licence was suspended, and exceeding the speed limit. Importantly for present purposes, there were three prior convictions for driving at between 30 and 35 kilometres over the speed limit.
Grounds of appeal
The applicant now seeks leave to appeal against sentence on the following grounds:
2The learned sentencing judge erred in:
(a) failing to apply the presumption of concurrency;
(b)fettering his discretion as to whether to order concurrency; or
(c)failing to apply the principle of totality.
as between the restored sentence for false imprisonment and the driving offences which breached the suspension.
3The sentences on counts 1 and 2 … the orders for cumulation, the total effective sentence, and the non-parole period are all manifestly excessive.
4The judge erred in failing to exercise his sentencing discretion in respect of the summary offence of breach suspended sentence and/or imposed a sentence that was manifestly excessive.[1]
[1]Ground 1 in the applicant’s original notice of appeal, which complained of ‘double punishment, was abandoned at the oral hearing of this application.
It should be noted in relation to ground 4 that the Crown accepts that the sentencing judge fell into error by assuming, it would seem, that he was required to impose the maximum sentence of three months’ imprisonment for the separate and distinct offence of having breached the suspended sentence. However, the Crown submits that, given that this entire sentence was ordered to be served concurrently, leave to appeal should not be granted on this ground alone. That is because, the Crown submits, even accepting that his Honour erred in relation to this matter, it is not reasonably arguable that this Court would, ultimately, reduce the total effective sentence if leave were granted. Accordingly, the Crown invokes s 280(1)(b) of the Criminal Procedure Act 2009 and submits that leave to appeal should be refused.
On behalf of the applicant, it is submitted that although he has a number of prior convictions for serious driving offences, these were all committed prior to 2008. With regard to his prior conviction for false imprisonment, he submits that his role in that matter was relatively minor, the offence dates back to 2008, and that it should not have carried any great weight when he came to be sentenced for the present offences.
It is said on the applicant’s behalf that he was aged only 26 at the time of the offending, and that his relative youth should be viewed as a mitigating factor. It is further said that he comes from a large and generally supportive family. Regrettably, he failed to complete his secondary education, and became dependent on cannabis from a young age. He later graduated to the use of amphetamines and methylamphetamine (‘ice’). Prior to having been sentenced in 2012 for false imprisonment, he had undergone rehabilitation from drug dependence. It was said, on that occasion, that he had ‘turned his life around’. It was further submitted that the applicant played an important role in caring for both his mother, who had developed Type 2 Diabetes, and his brother, who has Down syndrome.
Finally, it is said that the applicant has suffered a series of negative consequences as a result of the commission of these offences. He now suffers lower-back pain, his left eye twitches uncontrollably and will require surgery, and he has some level of Post-Traumatic Stress Disorder. He requires clinical and psychological support.
Moreover, as a result of these matters, the applicant was required to sell his interest in a panel-beating business, and assume casual employment. He was also required to repay the cost of damage to the motor vehicle that he was driving on the night in question.
Ground 2
Here the applicant contends that the sentencing judge erred in ordering that the restored sentence of six months for false imprisonment should be served wholly cumulatively upon the sentence for the two driving offences. This is said to violate the principle of totality, and to ignore the operation of s 83AR(3)(b) of the Sentencing Act 1991, which, at the time of sentencing,[2] was in the following terms:
(3)If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term must be served—
…
(b) unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.
[2]The section was repealed in 2013, when suspended sentences were abolished in Victoria: see Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 s 21.
The applicant relies upon the fact that the sentencing judge, in his sentencing remarks, addressed the restored sentence immediately before he imposed sentence for the two driving offences. He submits that, in these circumstances, the operation of the presumption of cumulation could not have arisen, since those sentences were not ‘previously imposed’. Accordingly, he contends that the subsection, not having been triggered, did not displace the presumption of concurrency, and that his Honour erred in failing to appreciate that fact. He accepts that the point is somewhat ‘technical’ in that the difficulty would have been avoided had the sentencing judge simply pronounced sentence for the two driving offences immediately before announcing the restoration of the suspended sentence.
The applicant also submits, in support of this ground, that it is important to remember that the act of false imprisonment had occurred some six years or so prior to the restoration of that sentence. The breach was to be dealt with at a time when the applicant had substantially rehabilitated himself from the factors that had led to the commission of that offence, at that time. For that reason, there should not have been total cumulation ordered.
The Crown accepts that, under the regime that existed until suspended sentences were abolished, it was somewhat unusual for orders for complete cumulation to be made in relation to breach of such sentences. The Crown further accepts that even in such cases the principle of totality must be borne in mind, [3] and that a judge should ordinarily give reasons if declining to order some measure of concurrency in matters of that kind.
[3]Kaya v The Queen [2014] VSCA 55.
Nonetheless, the Crown challenges the applicant’s construction of s 83AR(3)(b), and particularly the meaning to be attributed to the words ‘previously imposed’ in that subsection. It submits that the effect of giving that expression the meaning for which the applicant contends would be to undercut the presumption of cumulation embodied in s 83 (AR)(3)(b) in circumstances where a person was sentenced at the same sentencing hearing for the breaching offending, unless the judge followed a strict order of sentencing for the breaching offences first.
In that regard, the Crown refers to the extrinsic material regarding the Sentencing Amendment (Community Correction Reform) Bill 2011 which introduced s 83AR into the Act, as demonstrating a clear legislative intention, in enacting the provision, that a person who breached a suspended sentence by re-offending should have to serve the restored term cumulatively on any sentence imposed for the breaching offending.
The Crown, in its response to the applicant’s written case, says this regarding the applicant’s reliance upon s 83AR(3)(b):
The applicant makes a technical submission that because he was first sentenced for the breach of suspended sentence and the suspended sentence was restored prior to him being sentenced for the breaching offending, the presumption of cumulation on the restored suspended sentence had no effect and there was a presumption of concurrency for the breaching offending. That is a structural argument that frustrates the clear intention of s 83AR(3)(b) of the Act.
So far as relevant to the facts of this case, the usual course is that a person either pleads guilty or is found guilty of the breaching offending, is sentenced for the breaching offending to a term of imprisonment, and then the suspended sentence is restored, together with any additional sentence for the discrete offence of breaching the suspended sentence. The sentencing judge then determines appropriate orders for cumulation with regard to the term of imprisonment previously imposed by that Court for the breaching offending, alive to the presumption under s 83AR(3)(b) of the Act.
To the extent there was an error because of the order of sentencing for the restoration of the suspended sentence and the breaching offending in this matter, it is not reasonably arguable that the Court of Appeal, in imposing the correct sentence and alive to the legislative policy the underpins the provision, would reduce the total effective sentence, and so leave to appeal should be refused pursuant to s 280(1)(b) of the Criminal Procedure Act 2009.
The Crown goes on to say:
The false imprisonment matter for which the suspended sentence was imposed concerned a completely different category of offending to the breaching offences. All matters were serious. There is no complaint made by the applicant about the learned sentencing judge’s finding that there were no exceptional circumstances, which pursuant to s 83AR(2) of the Act resulted in the whole 6 month suspended sentence having to be restored.
The applicant, who was 28 years old at the time of sentencing, had previously been given the opportunity to remain in the community after breaching a suspended sentence. It was open to the learned sentencing judge, in light of the legislative presumption, to determine that given the seriousness and very different nature of the two episodes of offending, the restored suspended sentence should be served wholly cumulatively on the sentence imposed for the breaching offending. While his Honour described that course as ‘necessary’, his Honour may have been referring to the necessary course in order to achieve the purposes of sentencing, or the necessary course if he did not ‘otherwise order’.
In our opinion, the Crown’s submission regarding the construction of the subsection should be accepted. The applicant’s submission that the judge below fell into error of a kind that vitiates the exercise of the sentencing discretion, when he ordered that the whole of the six months of the suspended sentence that was breached be served cumulatively, should be rejected.
The applicant’s submission that, because the subsection refers to a presumption of cumulation where the question of restoring a suspended sentences arises, and uses the term ‘previously imposed’ in relation to the sentences for the breaching offences, a judge is required to follow a strict order of sentencing, failing which the presumption does not arise, should not be accepted. Perhaps not surprisingly, no authority was cited for that proposition. For our part, we consider it to be untenable. It seems to us to require that the words ‘previously imposed’ be construed in a purely temporal, rather than logical and common sense, manner. It would lead to absurd consequences. There is no reason why a judge, dealing with all matters in a single hearing, should not pronounce orders as to the restoration of the suspended sentence and then, immediately thereafter, sentence for the breaching offences, as distinct from doing so in the reverse order.
If we are wrong about this we would still, for reasons to be set out in response to grounds 3 and 4, refuse leave to appeal.
Ground 3
The individual sentences imposed, the total effective sentence, and the non-parole period were all, in our opinion, within range. That seems to us to be almost self-evident, having regard to the gravity of the offending, resulting as it did in serious injury to the driver of one vehicle, and the risk of death or serious injury to the driver and passengers in another. When one has regard to the applicant’s lamentable driving record, the position is made even more clear. It is also confirmed by reference to comparable cases and current sentencing practices.[4] General and specific deterrence were important factors in the process of intuitive synthesis. So too was the need for curial denunciation of the applicant’s conduct.
[4]See, eg, Spijodic v The Queen (2014) 68 MVR 269; Tokay v The Queen (2014) 69 MVR 24.
Ground 4
We have already referred to the fact that the sentencing judge appears to have erred in thinking that he was required to impose the maximum sentence of three months’ imprisonment for the separate offence of breaching the suspended sentence. Nonetheless, it would have been well open to his Honour to impose that sentence for this breach, had he been minded to do so. Moreover, the sentence of three months’ imprisonment was made wholly concurrent. As a matter of practical reality, the applicant has suffered no significant detriment as a result of its imposition.
We consider that there is no reasonable prospect that, if leave to appeal were granted, this Court would reduce the total effective sentence. In our view, the Court would almost certainly conclude that no different sentence should be passed. For these reasons, leave to appeal is refused.
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