Phongthaihong v The Queen

[2021] VSCA 317

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0204

BRANDON PHONGTHAIHONG	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2021
DATE OF JUDGMENT:	18 November 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 317
JUDGMENT APPEALED FROM:	[2020] VCC 294 (Judge Pullen)

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CRIMINAL LAW – Appeal – Sentence – Culpable driving causing death – Negligently causing serious injury – Reckless conduct endangering life – Standard sentence – Whether judge engaged in two-stage sentencing in taking into account standard sentence – Manifest excess – Sentence of 12 years and nine months’ imprisonment with non-parole period of eight years and nine months manifestly excessive – Orders for cumulation not giving sufficient effect to principle of totality – Mill v The Queen (1988) 166 CLR 59, Brown v The Queen (2019) 59 VR 462 applied; Crimes Act 1958 ss 22, 24, 318(1), Sentencing Act 1991 ss 5A–5B – Appeal allowed – Resentenced to 11 years’ imprisonment with non-parole period of seven years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann QC	Brian T D Cash
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

1. The appellant pleaded guilty before a judge of the County Court to one charge of culpable driving causing death (charge 1), two charges of negligently causing serious injury (charges 2 and 3) and one charge of reckless conduct endangering life (charge 4).

1. On 18 March 2020 the judge sentenced the appellant to 12 years and nine months’ imprisonment with a non-parole period of eight years and nine months.

1. The appellant was aged 21 at the time of offending and 22 at the time of his plea hearing in the County Court.

1. The details and structure of the sentence imposed are set out in the table below.

Charge	Offence	Maximum	Sentence	Cumulation
1	Culpable driving causing death (Crimes Act 1958 s 318(1))	20 years	9 years	Base
2	Negligently causing serious injury (Crimes Acts 24)	10 years	4 years and 6 months	20 months
3	Negligently causing serious injury	10 years	4 years	18 months
4	Reckless conduct endangering life (Crimes Act s 22)	10 years	18 months	7 months
Total effective sentence:		12 years and 9 months’ imprisonment
Non-Parole Period:		8 years and 9 months
Section 6AAA statement:		17 years’ imprisonment with a non-parole period of 14 years
Other relevant orders:		Licence disqualification for a period of 12 years

1. The appellant was granted leave to appeal by a judge of this Court on the following grounds:[1]

GROUND 1:

The Learned Sentencing Judge erred in her approach to the Standard Sentencing consideration that had to be undertaken in the Applicant’s case.

GROUND 2:

The total effective sentence and non-parole period are manifestly excessive.

[1]Phongthaihong v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 19 March 2021).

1. At the leave hearing the appellant was also granted an extension of time in which to file his notice of appeal.

Factual Summary

1. The appellant was the driver of a Mazda vehicle on 12 April 2019.  He was then 21 years old and had been licensed for just four and a half months.  He was statutorily prohibited from driving with any level of alcohol in his system.  The vehicle was in a roadworthy condition.

1. Field Street, Tootgarook is a single, undivided carriageway with provision for a single lane of traffic each for eastbound and westbound traffic.  Marshall Street intersects with Field Street at roughly 90 degrees.  The intersection is controlled by a roundabout of standard configuration.

1. The speed limit for Field Street at this location was 50 kilometres per hour, clearly indicated by signs.  As the appellant travelled east towards the intersection there were a number of indicators of the upcoming roundabout, including a yellow reflective roundabout warning sign 100 metres west of the intersection, and a red and white reflective roundabout sign at the intersection itself.  The concrete median strip was white and triangular in shape, bordered by ‘cat’s eyes’ on either side.  The intersection was lit by overhead fluorescent lighting erected immediately above the roundabout.  In short, the roundabout stood out like a beacon.

1. At about 4:30 pm on 12 May 2019 the appellant attended at the Rosebud skate park in the Mazda.  A number of other young people were present.  At 6:40 pm he attended at a liquor store opposite the skate park and purchased a six-pack of full-strength beer.  He began consuming the beer with ‘GA’,[2] a 17-year-old young man.

   [2]To protect the identities of underage victims of the offending, pseudonyms have been used in place of the names of these victims.

1. Some time later, the appellant and GA drove to Rye.  GA believed the appellant was then affected by alcohol.  It seems that a 10-pack of bourbon-and-coke cans were purchased by one of the occupants of the Mazda at some stage that evening.  Later, a four-pack of Woodstock bourbon cans was purchased at the Rosebud Hotel.

1. At about 11:00 pm the appellant drove to the Sorrento skate park with GA, having by then picked up ‘HT’, ‘MH’ and ‘EX’.  These young men were all secondary school students and all 17 years old.  The appellant was the only licensed driver of the five occupants of the vehicle.  The appellant endeavoured to skateboard but could not satisfactorily remain upright.

1. All five young men got back into the Mazda.  The appellant was substantially affected by alcohol.  At 11:48 pm HT, sitting in the front passenger seat, filmed the appellant driving the Mazda at 151 kilometres per hour along the Point Nepean Road between Blairgowrie and Rye — this is a 60-kilometre-per-hour zone.  The Mazda was driven to the ‘White Cliffs’ lookout in Rye. 

1. At approximately 1:15 am the Mazda approached the roundabout referred to at [8]–[9] above. The four young passengers were still in the vehicle. As the vehicle travelled east along Field Street at high speed, one of the occupants yelled out, ‘[L]ook out for the Marshall Street roundabout.’ The Mazda approached the roundabout at about 117 kilometres per hour. The appellant drove through the intersection, over the roundabout and collided with a large tree on the north-east side of the roundabout. At the time of impact, the rear-seat passengers, MH, GA and EX, were not wearing seatbelts.

1. HT died at the scene from chest injuries sustained in the incident. 

1. GA received life-threatening injuries and was not expected to survive.  He spent many weeks in an induced coma.  He suffered, amongst other injuries, an acquired brain injury of significant severity;  a burst eardrum resulting in deafness in his right ear;  a fractured skull requiring removal of bone fragments and a craniotomy;  almost complete loss of sight in his right eye;  nerve damage resulting in right-sided facial palsy;  severe complications as a result of a brain infection caused by debris entering open head wounds at the scene of the crash;  and a shattered jaw, with many surviving teeth broken.  He spent 10 months in hospital and then at the Epworth Rehabilitation Hospital.  He has lost the ability to smile.

1. MH also sustained life-threatening injuries.  He spent several weeks on life support, his spleen was removed and he sustained extensive pelvic and hip injuries.

1. EX sustained minor injuries.

1. The appellant was observed by police at the scene of the crash to smell strongly of alcohol.  A blood sample was taken at hospital and determined to contain .189 grams of alcohol per 100 millilitres.  Dr O’Dell, a pathologist from Victorian Institute of Forensic Medicine, opined that the appellant’s blood alcohol level would have been between .209 and .229 immediately before the crash.  He further stated that the appellant would have been absolutely incapable of having proper control of a motor vehicle.

The judge’s reasons for sentence

1. The judge set out the circumstances surrounding the offending conduct and its consequences in similar terms to those we have set out above.[3]  The judge noted that standard sentencing provisions applied to charge 1.  As appears from [40] below, the standard sentence applicable to that charge is eight years’ imprisonment.

   [3]See above [7]–[14], [19].

1. Her Honour noted that the appellant had pleaded guilty to the charges at an early stage.  She accepted that the pleas evidenced remorse and there were other expressions of remorse by the appellant.  The judge also accepted that the early pleas of guilty had the utilitarian benefit of sparing the community the time and cost of a trial, and the witnesses the emotional toll of reliving this ‘horrific ordeal’ by giving evidence.

1. The appellant’s criminal history in the Children’s Court was set out, as were more recent Magistrates’ Court convictions for graffiti-related offences which resulted in a Community Correction Order (‘CCO’).  The appellant breached that order, which was then varied and extended for two years from 31 May 2017.  The appellant breached this CCO by the present offending conduct.  The judge commented, ‘Despite being on this Order, you offended in this grave way.’[4]  The judge noted that a condition of the CCO was that the appellant continue receiving counselling from a psychologist, Ms Maria Cassar.

   [4]DPP v Phongthaihong [2020] VCC 294, [82] (Judge Pullen) (‘Reasons’).

1. The judge expressed the frustration that ‘police and the courts’ experience with offending such as the appellant’s:  ‘Speed, inexperience and alcohol are a diabolical combination.’[5]  Her Honour then reviewed the victim impact statements, which spoke of the pain, suffering, partial recovery and psychological trauma of the surviving direct victims of the appellant’s conduct;  the families of the deceased boy and the injured boys also spoke of their trauma and desolation at their losses.  The judge, correctly, noted that she must not allow the effects upon the victim to swamp the sentencing process.

   [5]Ibid [85].

1. Insofar as the standard sentencing relating to the culpable driving causing death charge and the objective gravity of the offending are concerned, the judge made the following observations. 

I was told that the standard sentence of eight years’ imprisonment was applicable to the offence of culpable driving and it was conceded that your offending fell above mid-range. Your counsel correctly observed [that] standard sentences were but one guidepost this court was to consider as part of the instinctive synthesis (see also s 11A [of the] Sentencing Act 1991 relevant to fixing non-parole periods).

…

Regarding categorisation of the seriousness of your offending in relation to culpable driving, your counsel conceded, consistent with written submissions (prepared by previous counsel), yours was higher than mid-level but not closer to high level and I discussed that with her.

She conceded, appropriately, that your offending relevant to the charges of negligently cause serious injury were serious examples of that offence and the injuries sustained by [GA] and [MH] were serious examples of such injuries.  She is correct.

…

Addressing the application of a standard sentencing regime in your case, [the prosecutor] submitted the standard sentence of eight years was one of the factors relevant to sentencing.  That I should continue to take into account all factors relevant to determining the appropriate sentence in all of the circumstances.

…

The objective factors in my opinion place the gravity of your offending higher than mid-range to be clear, higher than the standard sentence for this offence.[6]

[6]Ibid [115], [141]–[142], [192], [202].

1. Subsequent to the plea hearing the judge was provided with a psychological report from Ms Cassar.  Her Honour accepted that the appellant has suffered from longstanding post-traumatic stress disorder (‘PTSD’) and that this is sufficient to enliven Verdins principle 5.[7]  Whilst noting the appellant’s youth, the judge observed that these sorts of offences are often committed by young offenders and that, as the need for deterrence, denunciation, just punishment and protection of the community rise, the weight to be attached to youth is correspondingly reduced.  The judge accepted, however, that rehabilitation remained a sentencing consideration, although she regarded the appellant’s prospects as ‘guarded’.

   [7]See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).

1. Also before the Court was a psychological report from Ms Alice Crole.  In her report, the psychologist opined that the appellant met the criteria for attenuated psychosis syndrome, which included sleep paralysis and alcohol use disorder.  He also met the DSM-V criteria for PTSD and persistent depressive disorder with anxious distress and alcohol abuse disorder.

1. The judge set out some of the appellant’s background circumstances, including that he had helped contribute to his family’s finances, and had consumed alcohol since he was 15 years old with heavy use from 16–19 years.  He had been prescribed antidepressants at 16 or 17.

1. Ms Crole also opined that the appellant was psychologically immature.  She considered that a lengthy custodial sentence would weigh more heavily on the appellant than a person in normal mental health.

1. A neuropsychologist, Dr Evrim March, tested the appellant and detected no cognitive disabilities but demonstrated attenuated weaknesses and cognitive impulsivity were found to be present.  He considered that the appellant was at risk of deteriorating mental health during imprisonment and was at risk of developing a psychotic disorder should the sleep paralysis and the associated terror remain untreated.

1. The judge noted that counsel had correctly submitted that some cumulation between sentences was appropriate to reflect the separate victims and that totality was also a relevant sentencing consideration.

1. The prosecutor’s sentencing submissions were then reviewed by the judge.  Rehabilitation prospects were said to be guarded;  the appellant had breached a court order by this offending;  some cumulation between sentences was urged, although the principle of totality also had work to do.  The prosecutor submitted this was high-level offending.

1. The judge then stated that she took into account all the circumstances of the appellant’s driving in evaluating the seriousness of the offending, including:

·Speeding at various times prior to the offending.

·Burnouts in a carpark, indicative of his attitude to driving.

·Unheeded warnings received from passengers about speeding and the presence of the roundabout ahead.

·Alcohol consumption over a lengthy period of time.

·Numerous opportunities to desist from driving that were not taken.

·The appellant had only been licensed for four and a half months and was subject to a zero-alcohol licence condition.

·The appellant was on a CCO at the time of offending.

1. The judge added that she considered that there was a need for specific deterrence, denunciation and protection of the community from the appellant.  She stated that she must apply the principles of totality and proportionality.

Consideration

Ground 2

1. After lengthy consideration we have concluded that the total effective sentence and the non-parole term are each manifestly excessive.  Our reasons are as follows.

1. In cases where an offender is sentenced for multiple offences the totality principle interacts with the proportionality principle.[8]  This is because, while individual sentences may be unremarkable, by aggregating those sentences a disproportionate total effective sentence may result unless attention is paid either to moderating orders for cumulation or moderating the actual sentences imposed on individual counts.[9]

   [8]R v Smoker (2016) 126 SASR 201, 223 [74] (Lovell and Hinton JJ), quoting AB v The Queen (1999) 198 CLR 111, 157 [121] (Hayne J).

   [9]Mill v The Queen (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

1. The totality of the offending criminality must be appropriately reflected in the total effective sentence.  The preferred approach is for a sentencing court to impose appropriate, proportionate individual terms that satisfy all sentencing purposes, and then, if the principle of totality demands moderation of the overall sentence, to effect this through either complete or partial concurrency.[10]  The need for moderation of cumulation ordinarily will become greater as the individual sentences lean towards the high end of the available range.  In this case, the appellant submitted that, while none of the individual sentences are beyond the range of sentences reasonably available to the judge, each of them is towards the high end of that range.  We agree with this submission. 

   [10]Ibid; DPP v Grabovac [1998] 1 VR 664, 680, 683 (Ormiston JA, Winneke P agreeing at 665, Hedigan AJA agreeing at 690); R v Lomax [1998] 1 VR 551, 563 (Ormiston JA, Winneke P agreeing at 552, Hedigan AJA agreeing at 569); Azzopardi v The Queen (2011) 35 VR 43, 61–3 [63]–[68] (Redlich JA, Coghlan JA agreeing at 70. Macaulay AJA agreeing at 70).

1. In single-episode offending where there are multiple victims, such as this case, some degree of cumulation will be appropriate in recognition of the fact that there were four separate victims of the offending, each of whom, in varying degrees, has suffered loss and hardship.  As long ago as 2001, this Court recognised the intersection of the principle of totality with orders for cumulation in cases of multiple offences arising from the one driving episode:

So long as the cumulation does not offend the principle of totality it is … properly within the exercise of a sound discretion to recognise the fact that culpable driving has caused multiple deaths by cumulating a sensible portion of the sentence imposed for one offence upon the sentence imposed for the other.[11]

[11]R v Guariglia [2001] VSCA 27, [21] (Winneke P, Brooking JA agreeing at [25], Charles JA agreeing at [26]).

1. In the instant case there is no reason why a sensible portion of the sentences imposed on charges 2, 3 and 4 should not be cumulated on the base sentence and upon each other provided the principle of totality is not offended.  Balancing the appalling offending conduct in this matter and its dreadful consequences with the appellant’s early guilty pleas;  the additional burden of imprisonment arising from the appellant’s immaturity and, particularly, his poor mental health;  his undoubted remorse;  his prospects for rehabilitation;  and the fact that the individual sentences lean towards the high end of the available range, we have concluded that the total effective sentence and non-parole term do offend the principle of totality.  We are mindful that youth must yield primacy to concepts of general and specific deterrence in cases such as this,[12] but it cannot be overlooked entirely (as her Honour correctly observed).

   [12]DPP v Neethling (2009) 22 VR 466, 477 [55] (Maxwell P, Vincent JA and Hargrave AJA).

1. In line with these conclusions, we will allow the appeal on ground 2 and resentence the appellant as set out at [46] below.

Ground 1

1. This ground contends that the judge adopted a prohibited ‘two-stage sentencing’ approach to her sentence on the culpable driving causing death charge (charge 1). This is a ‘standard sentence’ charge and s 318(1A) of the Crimes Act 1958 provides that the standard sentence for this offence is eight years’ imprisonment.

1. In Brown v The Queen[13] this Court, after reviewing the standard sentencing scheme, explained how the ‘standard sentence’ was to be given effect in the sentencing process.  In summary, the standard sentence is a ‘legislative guidepost’, as is the maximum penalty.[14]  The standard sentence does not affect the instinctive synthesis;  does not permit ‘two-stage sentencing’;  and does not require the court to identify the objective seriousness of the case under consideration for the purpose of comparing it with the ‘mid-range’ standard sentence.[15]  The sentencing court is, however, required to explain how the sentence it imposes relates to the standard sentence.[16]

   [13](2019) 59 VR 462.

   [14]Ibid 464 [4], 479 [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

   [15]See Sentencing Act 1991 s 5A(1)(b).

   [16]Ibid s 5B(5).

1. In this case, in support of this ground, the appellant has isolated a paragraph from the judge’s reasons, which reads:

The objective factors in my opinion place the gravity of your offending higher than mid-range [—] to be clear, higher than the standard sentence for this offence.[17]

[17]Reasons [202].

1. The appellant contends that this paragraph evidences a prohibited ‘two-stage’ sentencing approach by her Honour — that her Honour started with eight years as the sentence appropriate for a mid-range offence of this type, and then adjusted this sentence upwards from that starting point to reflect the greater objective gravity of the appellant’s offending and subjective matters personal to the appellant.

1. We reject this submission.  We consider that a fair reading of paragraphs [115], [141]–[142], [148] and [192] (all of which are reproduced at [24] above) demonstrate clearly enough that the judge treated the standard sentence as no more than a legislative guidepost and applied the correct ‘instinctive synthesis’ approach.

1. Ground 1 is not made out.

Resentencing

1. In all the circumstances, the appellant will be resentenced as follows:

Charge	Offence	Sentence	Cumulation
1	Culpable driving causing death	9 years	Base
2	Negligently causing serious injury	4 years and 6 months	12 months
3	Negligently causing serious injury	4 years	9 months
4	Reckless conduct endangering life	18 months	3 months
Total effective sentence:		11 years’ imprisonment
Non-Parole Period:		7 years
Section 6AAA statement:		13 years and 9 months’ imprisonment
Other relevant orders:		Driver’s licence disqualification for 6 years and 5 months from 18 November 2021

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