JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 & 10 June 2022
DATE OF SENTENCE:	29 July 2022
CASE MAY BE CITED AS:	R v Al-Anwiya
MEDIUM NEUTRAL CITATION:	[2022] VSC 428

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CRIMINAL LAW – Sentencing – Dangerous driving causing death, failing to stop after a motor vehicle accident and failing to render assistance after a motor vehicle accident – Guilty plea – Category 2 offence – Youthful offender – Refugee background – Significant mitigation – PTSD – Whether accused has impaired mental functioning that would result in him being subject to substantially and materially greater than the ordinary burden or risks of imprisonment for purpose of Sentencing Act 1991 s 5(2H)(c)(ii) – Whether there are substantial and compelling circumstances that are exceptional and rare for purpose of s 5(2H)(e) Sentencing Act 1991 – Section 5(2H)(c)(ii) satisfied – Dangerous driving causing death of low objective gravity and low moral culpability – Objectively serious example of failing to stop and failing to render assistance – Reduced moral culpability – Total effective sentence of 10 months’ imprisonment with two year community correction order – Peers v The Queen [2021] VSCA 264; Buckley v The Queen [2022] VSCA 138; R v Verdins (2007) 16 VR 269; Sentencing Act 1991 ss 3, 5(2H)(c)(ii), 5(2H)(e), 5(2HC) and 5(2I).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Hutton	Office of Public Prosecutions
For the Accused	Ms S Keating with Ms N Kaye	Garde Wilson Lawyers

HER HONOUR:

Introduction

Mr Al-Anwiya, you have pleaded guilty to one charge of dangerous driving causing death, one charge of failing to stop after a motor vehicle accident and one charge of failing to render assistance after a motor vehicle accident. The maximum penalty for each offence is ten years’ imprisonment.

Additionally, dangerous driving causing death is a category 2 offence pursuant to the Sentencing Act 1991 (‘Act’).[1] I am required to impose a sentence of imprisonment on that charge unless one or more of the statutory exceptions is satisfied.
[1]The Act s 3(1)(eb).

The offending

On the morning of Sunday 25 October 2020 at approximately 11:15am, you were driving your silver Nissan sedan along Silvester Parade in Roxburgh Park. You were aged 20 and the holder of a probationary driver’s licence. The applicable speed limit was 50 kilometres per hour. The weather was fine and the road surface dry.

The victim in this matter, Mr Hermez, was 73 years old and lived in Roxburgh Park. It is believed he was walking from his home to the local shops when the fatal collision occurred.

The section of Silvester Parade where the collision occurred was a sweeping, uphill curve to the left. You were travelling in an easterly direction. McPherson Boulevard, which meets Silvester Parade at a T-intersection, was on your right hand side. On the south side of Silvester Parade,…

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 R v Al-Anwiya

Details

AGLC: R v Al-Anwiya [2022] VSC 428
Case: [2022] VSC 428
Decision Date: 29 July 2022

CaseChat Overview and Summary

In the case of R v Al-Anwiya, the defendant faced sentencing for dangerous driving causing death, failing to stop after a motor vehicle accident, and failing to render assistance after a motor vehicle accident. The matter was heard in the County Court of Victoria. The defendant, who had a refugee background and had entered a guilty plea, was assessed as a youthful offender with significant mitigating factors, including post-traumatic stress disorder (PTSD).

The primary legal issues before the court were whether the defendant had impaired mental functioning that would result in him being subject to substantially and materially greater than the ordinary burden or risks of imprisonment, and whether there were substantial and compelling circumstances that were exceptional and rare. Under section 5(2H)(c)(ii) and (e) of the Sentencing Act 1991, the court considered the low objective gravity and low moral culpability of the dangerous driving, coupled with the objectively serious nature of the failures to stop and render assistance. The court also noted the reduced moral culpability due to the defendant's plea of guilty and his background.

Upon considering these factors, the court found that section 5(2H)(c)(ii) was satisfied, given the defendant's mental health issues and the mitigating circumstances of his background. The court imposed a total effective sentence of 10 months’ imprisonment with a two-year community correction order, reflecting the mitigating factors and the principles set out in the cited cases of Peers v The Queen, Buckley v The Queen, and R v Verdins. The court's decision balanced the need for punishment with the circumstances of the offender, ensuring that the sentence was appropriate and just under the law.

The final orders of the court were that the defendant would serve 10 months in prison and be subject to a two-year community correction order, reflecting the sentencing principles and the specific circumstances of this case.

Orders