R v Al-Anwiya
[2022] VSC 428
•29 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0372
| THE QUEEN | Crown |
| v | |
| MARTIN AL-ANWIYA | Accused |
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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, that is, on your left hand side, is a footpath which runs alongside the road until just west of McPherson Boulevard. At this point, the footpath turns right and ends at the road’s edge. There is no pedestrian crossing, lights, speed control devices or signage of any type. Mr Hermez was attempting to cross Silvester Parade at this point when he was struck by the front right hand side of your vehicle. He was thrown into the air and landed on the roadway. Witnesses describe hearing a screech and a loud bang, although no one witnessed the actual collision. You immediately left the scene, quickly and without stopping. You did not attempt to render any assistance to Mr Hermez. Other motorists did stop and assist the victim, and police and ambulance were called. Tragically, Mr Hermez died at the scene.
After the collision, you did not return home, which was very nearby. You drove instead approximately 1.5 kilometres to the home of a friend, Mark Albazi. You told him, ‘Accident’, and asked him to take you home, which he did. On the way, he asked what had happened, and you said you had been in an accident and would return in half an hour to get your car. Your friends and family quickly pieced together that something serious had occurred, and returned you to the scene, where you were arrested shortly before noon. You were interviewed later that day with the assistance of an Arabic interpreter. You gave an account to the effect that the deceased appeared all of a sudden, you braked, and you do not remember anything after that. A sample of your blood was taken and tested, and no alcohol or illicit drugs were detected.
You admit through your guilty plea that your driving was dangerous. You failed to keep a proper look out for pedestrians and failed to pay due care and attention whilst driving.
Collision investigation
Police examined the scene and your vehicle. Based on various measurements and observations, it was concluded that the victim was approximately 2.2 metres across the road when you struck him. He was thrown approximately 11.27 metres by the impact. The bottom driver’s side corner of your windscreen was smashed. Two straight tyre skid marks approaching the collision scene were observed. The left hand skid mark was approximately 23 metres long and the right hand skid mark was approximately 6.98 metres long. Your vehicle was not fitted with ABS brakes, meaning once your brakes lock, you cannot steer. It is not alleged you were speeding either at the time of or prior to the collision. The speed of your vehicle, both when you first saw the victim and at the point of impact, are not known.
Victim impact
No victim impact statements were tendered in this matter.
Sentencing disposition sought
Your counsel submitted the exceptions found in ss 5(2H)(c)(ii) and 5(2H)(e) of the Act are enlivened, and you should receive a community correction order for all the offending. The prosecution submitted neither exception has application here, and a head sentence and a non-parole period is both the appropriate, and the only available, sentencing disposition. I had you assessed for a community correction order, and you were assessed as suitable. I will refer to the Extended Pre-Sentence Report dated 18 July 2022 (‘Corrections’ Report’) in the course of these reasons.
Personal circumstances
You were born in Baghdad, Iraq on 29 July 2000 and today is your 22nd birthday. You are the middle of three children. Your family unit is intact and your parents and siblings are now all here in Australia, having been granted refugee status. Your family is of Assyrian and Christian background.
Following the United States’ (‘US’) occupation of Iraq, circumstances in Baghdad became increasingly unsafe. When you were aged two or three, your family drove too close to a US convoy and were pulled over. A gun was pointed at your head and the officer threatened to shoot you if your family did that again. You do not recall this incident, but recall being later told about it by your parents.
After this, your family relocated to the northern Kurdish regions of Iraq. They would periodically travel south to see friends and family. On one occasion when you were aged seven, you attended a shopping centre in Baghdad and a car bomb exploded. You ran with your family towards the bomb site and were confronted with a graphic scene, including smashed windows, blood and human remains. Following this, you refused to travel with your family to Baghdad and would experience extreme psychological distress when they travelled, which would persist until they returned.
You attended school in northern Iraq until your family fled Iraq for Turkey when you were ten years old. In Turkey, your family lived in an apartment and later a small house with five other families. You attended school on and off for approximately two years, but generally felt unsafe and frequently refused to go. Apparently, Iraqi refugees were not well regarded by the general Turkish population. When two families left the shared accommodation, your immediate family struggled to pay the rent. You left school at age 14 and worked as a waiter six days a week to help support your family financially. You were exploited due to your ethnic background and visa status, and paid less than your Turkish workmates.
You arrived in Australia aged approximately 17 and were struck by the difference between Turkish and Australian society, including how friendly people were here. You enrolled in a Kangan Institute ESL course, which you completed over two years. Your family remained very involved in the orthodox church and you attend church at least weekly.
During the time you were studying English, you worked in construction with your uncle, but refused to take a wage. Your parents do not work due to physical disabilities, and you have always assisted with daily household tasks. You have never used illegal drugs, and consume alcohol very occasionally and never to excess. One month prior to this offending, you completed a security course.
Since this offending, you have been shunned by many members of your community, and your girlfriend ended your relationship. Your immediate family members, together with some of your extended family and friends, remain supportive.
Psychological material
A psychological report of Mr Armstrong was tendered and Mr Armstrong gave evidence on the plea. Mr Armstrong assessed you on 19 May 2022.
Mr Armstrong diagnosed you with post-traumatic stress disorder (‘PTSD’). He suggested the trajectory of the diagnosis began in childhood, but was reluctant to retrospectively diagnose a child with PTSD. He said prior to the offence your mental state in Australia was relatively stable. In evidence, he said as at this time, your PTSD condition relates to the collision itself.
Mr Armstrong said that when you spoke about the victim hitting the windscreen, you spontaneously disclosed that you were back at the car bombing in Baghdad, and all you wanted to do was escape. In Mr Armstrong’s opinion, you experienced a dissociative reaction. That is, you experienced a complete loss of awareness of your immediate surroundings, which in turn triggered overwhelming fear and an instinctive reaction to flee the scene. The severity of the dissociative reaction took away your capacity to make any judgment at all, and what followed was an incapacity to act in a calm, rational way. Mr Armstrong said following the dissociative reaction, other PTSD symptoms were reactivated, including hypervigilance, chronic underlying fear and avoidant reactions that have characterised your life. Once home, you became consumed with a fear that the police and your own family would beat you.
Mr Armstrong opined that as at the date of his report, your PTSD had led to a disabling level of concentration and impairment. You would struggle to hold down a job, and without professional help, you will remain somewhat unemployable because of your poor concentration and level of flashbacks. You need to be treated by a psychologist with experience and expertise in treating PTSD.
Mr Armstrong said treatment for mental health in prison is very general, and an opportunity to get PTSD-specific treatment would be more luck than anything. You are very fearful, and if in gaol and if exposed to violence, your PTSD symptoms would have a wider detrimental effect on your mental state. You are not violent, you have a fragile mental state and you are not a survivor. In his opinion, there is a high probability your PTSD symptoms will be reactivated if you are imprisoned.
Mr Armstrong said your diagnosis of PTSD did not just emerge after the accident. You have struggled with your mental health on and off from a young age, and this is corroborated by your older brother. Since the collision, you have become preoccupied with the circumstances of the offending. Due to your view of the collision scene from your bedroom window, you pleaded with your family to relocate to another suburb, which they ultimately did at great financial cost.
In cross-examination, Mr Armstrong said a flashback to the bombing occurred at the moment the victim hit the windscreen, and in the few seconds that followed, you were not aware of your surroundings. This lack of awareness lasted between impact and you fleeing the scene. He was asked about your decision to drive to Mark’s house; in his opinion, your level of impairment continued, and your capacity to think clearly and make sound judgments remained somewhat impaired. By the time you reached Mark’s house, your dissociative reaction had diminished and you appear to have remained in shock. Mr Armstrong said your decision to drive to Mark’s house and your presentation at his house is consistent with shock, but also with the added overlap of PTSD-specific features. He did not agree you left the scene because you were worried you would get into ‘legal trouble’.
Mr Armstrong agreed that in Australia you had no negative experiences with Australian police and you had experienced no threats from your family. Indeed, you come from a close-knit and supportive family. Mr Armstrong considers you a high risk prisoner because the violence and intimidation in prison will potentially reactivate your PTSD symptoms. Two symptoms likely to re-emerge are a distorted fear of authority and chronic fear.
In re-examination he said it is entirely plausible your awareness returned in a staggered way. Intense fear is a symptom of PTSD and impairs a person’s capacity for clear, calm thought and decision-making. A distorted fear of police and your own family is consistent with your PTSD. Once you were returned to the scene, you experienced a combination of shock, which is a realistic response, but within that shock response you cannot ignore the PTSD symptoms. He said it is difficult to distinguish specifically between shock and PTSD.
Your counsel submitted the psychological material is relevant to all charges, but in different ways. Given charge one is a category 2 offence, it is necessary to deal first with charge one and then with charges two and three. However, I will first turn to other relevant matters.
Other matters
You pleaded guilty to charges two and three at the earliest reasonable opportunity. Those charges were never contested. Your plea of guilty to charge one came later, but in circumstances where the prosecution case on the plea was revised. There is significant utilitarian value in your guilty plea, particularly given the courts continue to be impacted by the COVID-19 pandemic and resulting backlog. The additional mitigating value of a guilty plea in these circumstances must be reflected in the ultimate sentence.[2]
[2]Worboyes v The Queen (2021) 96 MVR 344, reaffirmed in Papagelou v The Queen [2022] VSCA 42, [28].
Your pleas of guilty to charges two and three are evidence of remorse, and show you have taken responsibility for your offending. You recognise you should have stopped immediately after hitting the victim, and provided assistance. According to the Corrections’ Report, you told the assessor you were driving normally when the victim jumped out in front of your vehicle from behind a tree. In your view, there is nothing more you could have done, and the collision was unavoidable. In my view, you lack insight into why your driving was dangerous, and have not taken full responsibility for that crime.
Corrections nevertheless found you expressed a high degree of remorse, despite disputing key aspects of your offending. You feel terrible that you are responsible for causing Mr Hermez’ death, and understand this is something you must live with. You contacted the victim’s family including his wife, and attended his funeral. You continue to regularly visit the scene and pay your respects. Overall, I accept you are deeply affected by the death Mr Hermez, and genuinely remorseful for your offending.
You are a young offender and were aged 20 at the time of the offence. Your youth mitigates sentence as expressed in the well-established principles set out in R v Mills.[3] Of course, the weight to be attached to youth correspondingly reduces as the seriousness of the criminality increases.[4]
[3][1998] 4 VR 235.
[4]Azzopardi v The Queen (2011) 35 VR 43, 57 [44].
You are a person of good character. Unfortunately, prior good character is sadly common in these types of cases. However, it remains a mitigating factor that must be taken into account.
Mr Armstrong assessed you as unlikely to re-offend, and Corrections assessed you as low risk of re-offending. Mr Armstrong said factors including your young age and availability of supports, if combined with specialist psychological treatment, would result in a potentially positive prognosis. You have no prior convictions or subsequent matters, and no behaviours or attitudes suggestive of conduct problems or criminality. You still hold a licence, but only drive if absolutely necessary and are hypervigilant when you do. Specific deterrence – that is, the need to deter you personally from further offending – has little weight when sentencing you. In my view, you have the character and capacity, with appropriate treatment and assistance, to go on and live a law-abiding and successful life.
Your counsel argued your PTSD has been crippling and ‘amounts to extra curial punishment’. Your current PTSD is referrable to this collision. You are responsible for the death of Mr Hermez, and an extreme psychological reaction is not unusual in these types of offences. It is relevant to remorse, the application of s 5(2H)(c)(ii), and the application of Verdins.[5] However, in my view, the condition does not constitute past or additional punishment for sentencing purposes.[6]
[5](2007) 16 VR 269.
[6]Singh v The Queen (2021) 96 MVR 329, 341 [55].
Your counsel also submitted the delay in this matter has had an extraordinary impact on you, because you have experienced PTSD symptoms whilst the matter has been pending. You told Corrections you have not been able to move forward, as the incident is constantly in the back of your mind, and also because of the uncertainties surrounding your ultimate sentence. I accept this, but the delay in this matter has not been particularly lengthy, and any resulting mitigatory effect is modest.
If you are imprisoned, you will be in custody during the ongoing COVID-19 pandemic. Conditions in custody continue to be more difficult due to the ongoing pandemic – prisoners are increasingly locked down, personal visits may be restricted or suspended, and the delivery of courses and programs have been disrupted. These matters mitigate any sentence of imprisonment.
Charge 1
Objective gravity and moral culpability
The objective gravity of the offending, and the moral culpability of the offender, are both of key importance when determining the appropriate sentence for this charge. The assessment is also important when considering whether the exception pursuant to s 5(2H)(e) applies.[7]
[7]The Act, s 5(2HC)(b).
Your counsel submitted the objective gravity is at the lowest end. The dangerousness is limited to failing to keep a proper lookout. The evidence cannot establish prolonged inattention, and the failure to keep a proper lookout may have been ‘no more than a few seconds’. Your counsel submitted you did see the deceased and brake, but were unable to stop in time. There was no marked pedestrian crossing and you did not breach any type of traffic control signal or device. You were not fatigued, affected by drugs or alcohol, speeding or otherwise engaged in conduct that made your driving unsafe. In all the circumstances, she submitted your moral culpability is low.
The prosecution submitted this is a case of ‘prolonged inattention for whatever reason’, and the Court can conclude there was prolonged inattention based on the following factors: the weather, in the sense nothing impaired visibility; you were familiar with the road; the victim was crossing at a ‘crossing point’; the victim was 2.2 metres across the road at the time he was struck; the length of the skid marks; the lack of explanation for your failure to avoid the deceased; and finally, the distance the victim was thrown after been struck. The prosecution concede certain aggravating features are absent, but submit there is nothing which reduces your moral culpability.
In my view, none of the factors identified by the prosecution, alone or in combination, allow me to conclude this was a case of ‘prolonged inattention’, or even what ‘prolonged inattention’ would mean in these circumstances. The fact the footpath ends at the curb, effectively directing pedestrians to cross at that point, does not create a marked or designated ‘crossing point’. Your plea of guilty to this charge has significant value, in circumstances where I do not know at what point, relative to your vehicle, the victim stepped onto the roadway. If a person steps into oncoming traffic, and an attentive driver, who is not speeding, is unable to stop in time to avoid a collision, that is an accident. By your plea, you admit your inattention was such as to involve a serious breach of the proper management or control of your vehicle, so as to create a real risk that persons in the vicinity would be killed or seriously injured.
I find the following factors are relevant when assessing the seriousness of your offending:
· Your dangerous driving took place over a very short period, both in terms of time and distance;
· I cannot make any finding as to the period of inattention, other than it was sufficient to constitute dangerous driving;
· You had a clear view of the road ahead and surroundings;
· You commenced braking prior to the collision, but were unable to stop in time; and
· You held a probationary licence and were relatively inexperienced, which increases the need for you to be alert and careful.
I acknowledge moral culpability is not assessed by simply cataloguing the absent aggravating features that may have been present.[8] However here, there is nothing known that escalates your blameworthiness, such as ignoring a warning, disregarding a known risk, speeding or driving whilst affected by drugs or alcohol. In all the circumstances, I find your moral culpability is low.
[8]Stephens v The Queen (2016) 50 VR 740, 746 [26].
Category 2 offence
In King v The Queen,[9] the High Court explained the necessary elements for the offence of dangerous driving causing death. The Court went on to say:
There is no doubt that s 319 is capable of encompassing a range of driving behaviours some of which, apart from their tragic consequences, attract considerably less condemnation than others. The legislature has imposed maximum penalties which, in effect, authorise a range of dispositions capable of encompassing the variety of circumstances in which offences may be committed against s 319. That variety must be reflected in the sentences which are imposed.[10]
[9](2012) 245 CLR 588.
[10]Ibid 609 [47].
However, the offence is now a category 2 offence, meaning a sentence of imprisonment, not including a term of imprisonment combined with a community correction order, must be imposed unless one of the statutory exceptions found in s 5(2H) applies. As a result, the variety of circumstances of which the High Court spoke are now unlikely, or unable, to be reflected in the sentences which are imposed.
Your counsel relied on the exception found in s 5(2H)(c)(ii). Pursuant to that section, the Court must impose a sentence of imprisonment unless the offender proves, on the balance of probabilities, that the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burdens or risks of imprisonment. Your counsel argued you suffer debilitating PTSD, there is a high probability your mental state will deteriorate in custody, and as a result the ordinary burdens and risks of imprisonment are substantially and considerably greater in your case.
The prosecution accepted your PTSD constitutes ‘impaired mental functioning’. They accepted it would make imprisonment more onerous, and at least Verdins principle 5 is satisfied. They were ‘less inclined’ to concede principle 6 had application. They submitted the evidence establishes no more than you would find custody difficult, in part because you are a young, first-time offender. Some PTSD symptoms may re-emerge, however the hurdle set by s 5(2H)(c)(ii) has not been cleared.
For this exception to apply, it is not necessary that the offender’s mental impairment must worsen if imprisoned. An offender may have impaired mental functioning, and even if the condition is ‘fixed’, the existence of that condition may mean he or she will be subject to substantially and materially greater than the ordinary burden or risks of imprisonment. For example, an intellectually disabled offender may come within this exception, even though their level of intellectual disability will not worsen if incarcerated.
According to Mr Armstrong, your PTSD condition is a chronic one. You would currently struggle to hold a job, due to poor concentration and intrusive flashbacks. Mr Armstrong stated:
The prison environment is characterised by violence and intimidation … so if you place someone like him with a fragile mental [state] in an environment where he’s potentially exposed to violent offenders, I think it would have a significantly detrimental effect on his mental state.
There is a high probability that it [a deterioration in his mental state] will be activated within the prison environment.
I think for anyone entering into an incarcerated environment it’s a pretty terrifying proposition, but in saying that, in the absence of mental health problems, you’ve got one less factor against your survival within that environment. [Mr Al-Anwiya] would be entering prison with a mental illness and that mental illness could be reactivated in a number of ways. I think an added feature of risk for him is potentially how other prisoners will view him and how he could be exploited within the prison environment due to his young age.
The hurdle set by s 5(2H)(c)(ii) is higher than that which attracts the principles in Verdins.[11] I must be satisfied that you would, because of your PTSD, be subject to a substantially and materially greater burden than a prisoner who does not suffer from your condition. Your current PTSD symptoms include chronic impaired concentration; chronic insomnia; panic-like symptoms if triggered; hypervigilance; flashbacks; and social disconnection. You are constantly nervous, and cannot enjoy or experience positive emotions. You have a lifelong experience of complicating mental health problems. Mr Armstrong opines that a sentence of imprisonment would be particularly arduous, given your condition includes a distorted view that you are unsafe and at risk of harm.
[11]Peers v The Queen [2021] VSCA 264, [52].
Your impaired mental functioning is not the only factor which would make you vulnerable in custody, however that does not reduce the significance of your PTSD and fragile mental health. There will frequently be more than one factor which makes a person vulnerable in custody. You do not have a mild or moderate condition; your PTSD is disabling and chronic, and will make any time in custody significantly and considerably more burdensome for you. The evidence satisfies me, on balance, that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment faced by a young, first-time, non-violent offender. This finding means a sentence, other than a sentence of imprisonment, may be imposed on charge one. Of course, the exception created by s 5(2H)(c)(ii) may be satisfied but the offender still sent to jail.[12]
[12]See, for eg., Peers v The Queen [2021] VSCA 264, where s 5(2H)(c)(ii) was satisfied, and the offender re-sentenced to 20 months’ imprisonment with a non-parole period of 8 months’ imprisonment.
Your counsel submitted principles 5 and 6 of Verdins have application here. She submitted the existence of your PTSD means any sentence will weigh more heavily on you than it would on a person in normal health. There is also a significant risk that symptoms of your PTSD will re-emerge if you are imprisoned. In my view, principle 5 is relevant, although there are additional reasons why you would likely find custody more onerous, including your youth. There is a real risk imprisonment will have a significant adverse effect on your mental health, as there is a high probability some PTSD symptoms will re-emerge, and I take this into account by way of mitigation.
Your counsel also relied on the exception found in sub-s (2H)(e). Through a combination of provisions, para (e) requires the court to evaluate whether there are substantial and compelling circumstances that are exceptional and rare and that justify not imposing a sentence of imprisonment.[13] Certain matters must be disregarded or given less weight, and other matters must be given greater importance.
[13]In determining whether there are ‘substantial and compelling circumstances’, the Court must attribute greater importance to the sentencing purposes of general deterrence and denunciation, and must give less weight to the personal circumstances of the offender than to ‘other matters such as the nature and gravity of the offence’. The Court must not have regard to the offender’s previous good character (other than an absence of criminal history); early guilty plea; and prospects of rehabilitation; or ‘parity with other sentences’. The Court must have regard to parliament’s intention as expressed in s 5(2I)(a), and must have regard to whether the ‘cumulative impact of the circumstances of the case’ would justify a departure from a sentence of imprisonment.
In my view, the following factors are relevant when considering whether there are ‘substantial and compelling circumstances that are exceptional and rare’:
· The fact you were 20 at the time of the offending, at which age you would have been eligible for a youth justice centre order;
· Your youth, PTSD, mental health, level of insight and remorse, subject to ‘less weight’ being placed on these personal circumstances;
· The value (but not the timing) of your guilty plea;
· The low objective gravity and low moral culpability of your offending;
· Your lack of prior convictions;
· The importance of general deterrence and denunciation as sentencing purposes; and
· Parliament’s intention that this offence should ordinarily attract a sentence of imprisonment.
The legislation requires the sentencing judge to regard the purposes of general deterrence and denunciation as having greater importance than other purposes found in s 5(1).[14] I do not accept the submission that when considering this exception, the requirement for general deterrence ‘becomes less’ when the objective gravity of the offending is low. The need to deter others from driving dangerously and causing the death of fellow road users is an important sentencing aim, irrespective of whether the dangerousness is momentary inattention or a more serious example of driving dangerously. I also reject the submission that the absence of any victim impact statement, in a case where you caused the primary victim’s death, is a factor in your favour. That circumstance is irrelevant and cannot be turned into a positive.
[14]The Act, s 5(2HC)(a).
As the Court of Appeal recently made clear, the requirement set by s 5(2H)(e) is almost impossible to satisfy.[15] This case concerns a young, male, probationary driver, driving without proper care and attention such as to make his driving dangerous to the public. In my view, there are not ‘substantial and compelling circumstances that are exceptional and rare’.
[15]Buckley v The Queen [2022] VSCA 138, [3], citing DPP v Bowen [2021] VSCA 355, [11].
Charges two and three
Objectively, your offending on these charges is serious. You knew you had struck a pedestrian, and with sufficient force to smash your windscreen. You should have stopped and immediately assisted the person you struck. Given the location and time of day, there were fortunately other motorists nearby who did just that. You told Corrections that at the time you struck the victim, you did not think the injuries would be as serious as they were. Whilst you may have legitimately not thought the victim would die, you knew, or at least reasonably ought to have known, that you had seriously injured the man you hit.
Frequently, an offender flees the scene to avoid detection. They may be aware they were driving dangerously, or they were intoxicated, drug-affected, unlicensed or in a stolen vehicle. They may seek to conceal or dispose of the damaged vehicle. In other cases, the collision may have occurred in a remote location, or at a time where no-one else is on the roadway, meaning the decision to flee may be the difference between life and death for the injured person. None of these circumstances exist here, and you did return to the scene with the assistance of your family.
You told Corrections that one reason you immediately left the scene was due to past traumatic experiences when dealing with police in Iraq and Turkey. You panicked, and were scared of what police might do to you. The prosecution submitted what you told Corrections is inconsistent with Mr Armstrong’s evidence, as Mr Armstrong stated your fear of police only arose once you had reached Mark’s house or your own home. The prosecution submitted leaving the scene due to fear and panic does not substantially reduce your moral culpability. Your counsel submitted your account to Corrections is not materially different from what you reported to the psychologist. You told Corrections it was one of the reasons you left, and Mr Armstrong stated you experienced a re-emergence of PTSD symptoms, including intense fear and hypervigilance.
In my view, what you told Corrections does not contradict Mr Armstrong’s evidence. Mr Armstrong wrote:
It is probable that Mr Al-Anwiya’s experience of a dissociative flashback, subsequent loss of complete awareness of his immediate surroundings, in turn triggered overwhelming fear, and an instinctive reaction, that of fleeing the scene.
Mr Armstrong said once you were at home, you became ‘consumed’ with fear that the police and your own family would beat you. I do not interpret that to mean you had no such fear prior to that moment. Overwhelming fear is a symptom of your PTSD, and includes a fear of police and authority.
I accept that at the moment you struck the victim, and in the seconds between that moment and your decision to leave, you experienced a dissociative reaction as a result of your undiagnosed PTSD. This was followed by the re-emergence of PTSD symptoms, including chronic fear, and in this state you fled the scene. As the Court of Appeal said in R v Mohamed (2009) 53 MVR 82:
It was clearly put on the plea, and supported by the report of [the psychiatrist], that the applicant left the scene because of the re-emergence of his post traumatic stress disorder. It will be an unusual case where such a positive explanation is advanced. A case where a driver reasonably feared his or her physical safety might be another.[16]
In that case, the applicant faced a single charge. There was no suggestion the applicant was driving badly. The applicant was sentenced to 20 months’ imprisonment, with all but six months suspended.[17]
[16]R v Mohamed (2009) 53 MVR 82, 86 [28].
[17]Following inquiries, it was confirmed the sentence is as set out in paragraph [3] of that decision, not paragraph [35].
Your counsel, relying on your PTSD, submitted all six Verdins principles have application here. In my view, at the moment you decided to leave the scene, your capacity for calm, rational decision-making was impaired. In this way, your moral culpability is reduced. General deterrence is also moderated, given the impact of your PTSD on your mental state both at the time of the offending and as at the date of sentence. The application of principle 4 has no meaningful impact on the sentencing task, given my finding that specific deterrence is already not a significant sentencing purpose here. Across all charges, your PTSD and the likely impact of custody on your mental health, means principles 2, 5 and 6 of Verdins are relevant to sentence.
Whilst charges two and three are separate and distinct offences[18] and some cumulation may be necessary, it does not follow that cumulation must be ordered in every case where both leaving the scene of an accident and failing to render assistance are charged. In my view, in the circumstances here, concurrency is open.
[18]Neskovski v The Queen [2022] VSCA 86.
Conclusion
Dangerous driving causing death is a serious offence, with devastating and tragic consequences. A man has lost his life. The need for general deterrence on this charge is moderated having regard to your PTSD and the extra burden you would suffer in prison, but it is still a significant sentencing purpose. Drivers must, at all times, pay careful attention when driving. The consequences of not doing so may be catastrophic, as this case demonstrates. Leaving the scene of an accident, and failing to render assistance, are also serious offences. If a driver is involved in a collision, then they must stop, remain at the scene, and immediately provide assistance. If they fail to do this, they should expect to be severely punished.
The Corrections Report supports a non-custodial disposition. Corrections refer to your youth, lack of prior convictions and low criminogenic potential. You have a number of protective factors in place, such as your close-knit supportive family, and it appears the offending was a one-off isolated incident. Corrections agree with Mr Armstrong that specific exposure to a custodial setting will likely hinder your rehabilitation and further exacerbate your mental health problems.
There are substantial mitigating matters here, including the value of your guilty plea, your remorse, your PTSD and the application of Verdins. However, you have committed three serious offences. Just punishment, denunciation and general deterrence must be reflected in the overall sentence you receive. The offence of dangerous driving causing death is often committed by persons who are young, have no prior convictions and exhibit genuine remorse.[19] The objective gravity on charges two and three is high and deserving of immediate imprisonment, notwithstanding your reduced moral culpability and mitigating factors. In all the circumstances, I have determined the appropriate outcome is to sentence you to a term of imprisonment on each charge, to be followed by a therapeutic community correction order on all charges, assuming you consent to the order.
[19]DPP v Neethling (2009) 22 VR 466.
In all the circumstances, the sentence of the Court is as follows:
On charge one, you are convicted and sentenced to six months’ imprisonment.
On charge two, you are convicted and sentenced to eight months’ imprisonment.
On charge three, you are convicted and sentenced to six months’ imprisonment.
The sentence on charge two is the base sentence. I direct that two months of the sentence on charge one be served cumulatively upon the sentence on charge two. The sentence on charge three is wholly concurrent. This makes a total effective sentence of ten months’ imprisonment and upon release from custody, you will be subject to a two year community correction order with conditions.
Together with the mandatory conditions that I will not read out, I impose the following conditions:
· You are to be under the supervision of Community Corrections for the duration of the order;
· You are to undergo mental health treatment and rehabilitation as directed; and
· You are to undergo any other program, course or treatment as directed.
I confirm you have consented to the community correction order.
If you breach the Order, either by non-compliance or further offending or both, you will be brought back before me on the breach. Depending on the nature of the breach, you may find yourself being resentenced for these offences. If that were to happen, you may find yourself being sentenced to a further term of imprisonment.
Dangerous driving causing death is a ‘serious motor vehicle offence’ as defined in s 87P(d) of the Act. Pursuant to ss 89(1)(a) and 89(2)(a), I must cancel any licences or permits held by you, and disqualify you from obtaining any further permits or licences for a period of not less than 18 months. All permits and licences held by you are cancelled and you are disqualified from obtaining any further ones for a period of 18 months from today. Having convicted you on charges two and three, and as this is a first offence, then pursuant to s 61(6) of the Road Safety Act, I must cancel any licences or permits held by you, and disqualify you from obtaining any further permits or licences for a period of at least four years. All permits and licences held by you are cancelled and you are disqualified from obtaining any further ones for a period of four years from today. For the avoidance of doubt, the period of four years and the period of 18 months run concurrently, meaning effectively you are disqualified for a period of four years from today.
I state pursuant to s 6AAA that but for your plea of guilty, I would have sentenced you to a total effective sentence of three years and six months’ imprisonment with a non-parole period of two years’ imprisonment.
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