Nguyen v The Queen
[2014] VSCA 53
•31 March 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0228
| DUY THAI NGUYEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 March 2014 |
| DATE OF JUDGMENT | 31 March 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 53 |
| JUDGMENT APPEALED FROM | R v Nguyen (Unreported, County Court of Victoria, Judge Chettle, 6 November 2013) |
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SENTENCING – Application for leave to appeal against sentence – Application treated as heard instanter – One charge of failing to stop a motor vehicle after an accident, one charge of failing to render assistance, one summary offence of unlicensed driving – Total effective sentence of two years and one months’ imprisonment, with a non-parole period of 12 months – Applicant argued trial judge erred in discounting the applicant’s fear of reprisal attacks at the scene– Application granted and appeal allowed in relation to summary charge only – Sentence and order for total cumulation of sentence for summary charge manifestly excessive – Applicant resentenced to one weeks’ imprisonment to be served concurrently with the sentences imposed on charge 1 and 2 – Wassef v The Queen [2011] VSCA 30.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Challenge Legal |
| For the Respondent | Ms S A Flynn | Mr C Hyland, Solicitor Public Prosecutions |
NEAVE JA
WEINBERG JA:
On 6 November 2013, the applicant pleaded guilty to one charge of failing to stop a motor vehicle after an accident, one charge of failing to render assistance and one summary offence of unlicensed driving. The applicant was sentenced to a total effective sentence of two years and one months’ imprisonment, with a non-parole period of 12 months.
Charges on Indictment Offence Maximum Sentence Cumulation 1 Failing to stop after a motor vehicle accident [s 61(1)(a) of the Road Safety Act 1986] 10 years [s 61(3) Road Safety Act 1986] Licence interventino: Mandatory 4 year cancellation and disqualification following conviction [s 61(6) Road Safety Act 1986] 18 months Base 2 Failing to render assistance after an accident [s 61(1)(b) RoadSafety Act 1986] 10 years [s 61(3) Road Safety Act 1986] Licence interventino: Mandatory 4 year cancellation and disqualification following conviction [s 61(6) Road Safety Act 1986] 18 months 6 months Summary charge Unlicensed driving [s 18(1) Road Safety Act 1986] 3 months [s 18(1) Road Safety Act 1986] 1 month 1 month Total Effective Sentence: 2 years and 1 months imprisonment Non-Parole Period: 12 months imprisonment Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 87 days 6AAA Statement: The learned sentencing judge stated that the sentence she would have imposed if the applicant had been convicted of this offence after a trial would have been 3 years imprisonment, with the applicant becoming eligible for parole after serving 2 years of that sentence. Other relevant orders: All Victorian licences and/or permits held by the applicant were cancelled and he was disqualified from obtaining any such licence or permit for 4 years from 6 November 2013.
The applicant is a Vietnamese citizen who arrived in Australia on a temporary tourist visa in 1994. He applied for a protection visa in 1996, but was refused. The applicant was directed to leave the country by the Department of Immigration, but continued to reside in Australia without a visa and was not apprehended by the authorities. Following the accident he applied for a visa based on the fact that he was now in a relationship with an Australian resident. He was given a bridging visa because he had not been properly notified about the failure of his protection visa application. Because he had no visa for many years, the applicant never held a Victorian drivers’ licence.
On 25 April 2013, the deceased, Ali Naem Dakhil, and his friend Al Sabonchi, were walking down Ballarat Road in Footscray towards Mr Sabonchi’s home. The two men had been drinking throughout the evening and were very drunk. At the same time the applicant was driving down Ballarat Road in a Maroon Honda Prelude.
At approximately 8:30pm, the two men approached the intersection with Park Street. Approximately 15 metres from the intersection, Mr Dakhil strayed onto Ballarat Road. Mr Sabonchi called out to Mr Dakhil to warn him of the oncoming traffic and Mr Dakhil doubled back and attempted to return to the footpath. About one metre from the footpath, Mr Dakhil stopped with his back to the oncoming traffic. The applicant’s car struck Mr Dakhil on the front passenger side. He was thrown across the windscreen and came to rest approximately 17 metres from the point of impact. Mr Dakhil received significant head injuries as a result of the accident and was rushed to hospital. He died the following day.
The police estimate that at the time of the collision, the applicant was driving at approximately 10 kilometres below the speed limit. The applicant braked and slowed after the accident but did not stop. He continued down Ballarat Road to his residence in Kallara Grove, Maribyrnong, and parked in a laneway at the rear of the property. The car sustained significant damage to its bumper bar, headlight and bonnet as well as a shattered windscreen.
A few hours after the accident, police went to the home of the car’s registered owner Bui Hoang Doang in Derby Street, Mooney Ponds. The occupant, Nhi Do, provided the applicant’s name to police but did not provide an address. After the police left, Ms Do rang the applicant and told him the police were looking for him. The police later returned to Ms Do’s residence to make further inquires and she provided them with the applicant’s address in Kallara Grove. At 3:20am police went to Kallara Grove and found the car, which had pieces of body tissue from Mr Dakhil on its exterior. The applicant was not at home.
On 27 April 2013, the applicant went to Footscray Police Station and handed himself in to the police. He was arrested and interviewed, and made full admissions. The applicant told police he had finished work in Lygon Street in Carlton at 5:00pm, and had driven to a friend’s house where he had consumed about four cans of beer over a number of hours. He told police that he was driving home from his friend’s house when he heard a loud ‘bang’ which he thought must have been a human because of the height and impact on the windscreen. He said he did not stop because he was ‘afraid of being beaten by the relatives of the person and because I was driving without a licence, so I just kept driving home’. The applicant also stated that he was ‘very remorseful and I regret what happened’.
The applicant appeals on the following grounds:
1.The sentencing judge erred in finding that ‘there are no exculpatory reasons for you departing the scene in this case’.
2. The individual sentences, orders for cumulation and non-parole period resulted in a total effective sentence that was manifestly excessive.
Ground 1
The applicant argues that the sentencing judge erred in finding that ‘there are no exculpatory reasons for you departing the scene in this case’. The applicant submitted that motivation for the commission the offence was relevant and important in assessing the applicant’s moral culpability and the objective seriousness of the offending.
The trial judge referred to the decision of this Court in Wassef v The Queen,[1] which the trial judge described as ‘apposite’ to this case. In Wassef the Court held that the appellant had ‘deliberately fled from the scene, presumably to protect himself’ and that this was the sole reason for failing to stop.[2] The appellant argues that in this case the trial judge had ‘relied heavily upon the decision of Wassef’ as requiring the discounting of the applicant’s fear of reprisal attacks at the scene. Unlike Wassef, the applicant’s fear of reprisal from the relatives of the deceased was an important reason why a man of otherwise good character would behave in such a way. He contended that as a consequence the trial judge overstated the moral culpability of the applicant. The applicant concedes that the alleged fear of reprisal was only part of the reason for failing to stop, but nonetheless argues it is an important factor in explaining the applicant’s conduct.
[1][2011] VSCA 30.
[2]Ibid [31].
The respondent contends that there is no evidence that the applicant feared being attacked by relatives of Mr Dakhil, and that the applicant gives no account of seeing or hearing anything that would imply a threat from another person at the scene. Rather, the respondent argues that the applicant’s knowledge of his drinking, lack of a licence and his immigration status were the predominant reasons for failing to stop.
Conclusion on ground 1
In our opinion this ground is not reasonably arguable. The Court of Appeal’s remark that the appellant in Wassef ‘deliberately fled from the scene in order to protect himself’ was simply an observation about the facts of the case. It would have been an error for the sentencing judge to treat himself as bound by Wassef to reject the argument that Mr Nguyen fled in order to protect himself from reprisal by the victim’s relatives. But his Honour did not do so.
In discussion during the plea hearing the applicant’s counsel accepted that the applicant left the accident scene because he had been drinking, was unlicensed and did not have a visa permitting him to remain permanently in Australia. Counsel for the applicant accepted that these were the reasons he had not stopped or rendered assistance. In these circumstances it was not an error for the judge to consider that there was no legitimate reason for the applicant leaving and that ‘there were no exculpatory reasons’ for him doing so.[3]
[3]R v Nguyen (Unreported, County Court of Victoria, Judge Chettle, 6 November 2013) (‘Sentencing remarks’) [23].
Apart from the applicant’s assertion, there was no evidence supporting his claim that he was frightened of being attacked by the deceased man’s relatives. Nor was there any evidence that the deceased’s relatives, or even people that might have been his relatives, were present or observed by the applicant at the scene of the accident. If the applicant sought to rely on his fear of being attacked, the judge would have to be satisfied on the balance of probabilities that this was the case.
The applicant was unaware of the seriousness of the victim’s injuries, but the fact that he bounced up on to the windscreen of the applicant’s car made it likely that he had been seriously injured. His Honour was entitled to conclude that the applicant failed to stop or help the victim, in order to prevent apprehension by the police, and to protect himself from the consequences of driving while unlicensed.
Ground 2
The applicant argues that the individual sentences, orders for cumulation and non-parole period were manifestly excessive having regard to:
1. his plea of guilty at the earliest possible opportunity;
2. his previous good character and lack of prior convictions;
3. the likelihood that he would ‘in all probability be deported’ and would find a term of imprisonment ‘more onerous’ than would otherwise be the case’ because of that expectation;
4. the fact that he had co-operated with the police following arrest and the sentencing judge’s that he had made ‘frank admissions’ about consumption of alcohol and factors that had led him to depart the scene;
5. his ‘genuine remorse’;
6. his excellent work history since 1995 and the fact that he was employed at the time of plea and sentence;
7. the fact that he was now suffering from depression and anxiety;
8. the good support offered by his partner and friends;
9. his reasonable prospects of rehabilitation.
The applicant also contends that this was not a serious example of this type of offending. The applicant was not speeding and there was no suggestion that his driving contributed to the accident. In that sense he was blameless, although he did of course fail to stop and render assistance.
The applicant also argues that the orders for cumulation were manifestly excessive. He submits that the trial judge accepted the prosecutor’s concession that substantial concurrency was appropriate in this case. The applicant argues that the 6 months of cumulation imposed in relation to the sentence on charge 2, was excessive in light of this concession. The period of cumulation amounted to 33 per cent of the 18 months sentence imposed.
The respondent argues that this ground is not made out. The fact that the applicant had been unlicensed for many years, and that he had been drinking alcohol before the accident places the sentence well within the permissible range for this type of offending.
Conclusion
As has frequently been stated, the ground of manifest excess is difficult to establish. An applicant must show that the sentence fell outside the range of sentences that could be imposed in the reasonable exercise of the sentencing discretion. The excess must be manifest, in the sense that it is plain, clear, obvious, apparent, or unmistakable.[4]
[4]Soylemez v The Queen [2014] VSCA 23 [6].
In our opinion it is not reasonably arguable that the individual sentences imposed on charges 1 or 2 are manifestly excessive. True it was that the deceased wandered into the road and that the applicant was driving well within the speed limit, when he hit the victim. But he callously failed to stop after the accident and failed to attempt to help the victim. General deterrence is a significant sentencing factor in cases of this kind. The seriousness with which Parliament regards the offending is reflected in the maximum penalty of 10 years, which applied to charges 1 and 2.
In Wassef this Court noted the increase in the maximum sentence for failing to stop after an accident from two years’ imprisonment to 10 years’ imprisonment, which occurred in 2005. Redlich JA (Maxwell P agreeing) observed that
As a consequence of the increase in the maximum penalty for failing to stop, it is now to be viewed as a much more serious offence than was hitherto the case. Not only has the maximum increased fivefold but it is twice as much as the maximum penalty for the offences of reckless conduct endangering a person and dangerous driving causing serious injury.[5]
[5][2011] VSCA 30, [30].
Although this is far from the worst example of these offences, the applicant bears a significant degree of moral culpability. As his Honour pointed out, the applicant could have assisted by making a phone call for help, even if he did not stop. The fact that he may not have stopped because of his concern about his visa and his lack of a licence did not reduce that moral culpability.
In his sentencing remarks, his Honour observed that in sentencing the applicant ‘the prosecutor correctly conceded in my view that there is a requirement for substantial concurrency and some minor accumulation, because [the applicant] could have assisted even if [he] did not stop’.[6] The order for six months cumulation imposed in relation to Charge 2 was not inconsistent with that observation and did not result in the imposition of a total effective sentence which was manifestly excessive.
[6]Sentencing remarks [26].
The applicant was entitled to rely on a number of mitigating factors, including his full admissions and plea of guilty, his remorse and his prospects of rehabilitation. However all these matters were extensively discussed in the sentencing reasons and taken into account by his Honour.
The applicant was sentenced to one months’ imprisonment on the summary charge of driving without a licence, an offence which attracts a maximum penalty of three months’ imprisonment. Having regard to the applicant’s lack of prior convictions for this offence we consider that that sentence and the order for total cumulation of that sentence was manifestly excessive. In the ordinary course of events, a fine would have been imposed for a first offence of this kind. We would therefore grant leave to appeal in relation to sentence, sentence the applicant to one weeks’ imprisonment for that offence and order that the sentence be served concurrently with the sentences imposed on charge 1 and 2.
As a consequence of the above matters the applicant is re-sentenced to a term of imprisonment of two years with a non-parole period of 12 months. Pursuant to s 6AAA of the Sentencing Act 1991, we declare that we would have imposed a total effective term of imprisonment of three years with a non-parole period of two years.
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