R v Perera
[2006] VSCA 135
•26 June 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 124 of 2005
No. 310 of 2005
| THE QUEEN |
| v. |
| THUSHITH CHAMERA PERERA |
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JUDGES: | BUCHANAN and NETTLE, JJ.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 June 2006 | |
DATE OF JUDGMENT: | 26 June 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 135 | |
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Criminal law – Sentencing – Driving offences – Negligently causing serious injury – Sentencing judge mistakenly supposed appellant had breached conditions of bail – Appellant re-sentenced to be imprisoned for a term of two years with a minimum term of 14 months’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Victoria Legal Aid |
BUCHANAN, J.A.:
At about midnight on 20 September 2004 the appellant drove his close friend, one Shanaka Caldera, to a party at a house in Chadstone. The appellant consumed alcohol at the party and at about 3.00 a.m. on the morning of 21 September 2004 left to drive Caldera to another house in Mt Waverley. The car driven by the appellant braked heavily approaching the intersection of Highbury Road and Gillard Street. The intersection sloped down hill with a negative cross-fall. As a result of the heavy braking the wheels of the car locked and the car skidded across the intersection, mounted the kerb, struck a traffic light pole and collided with a brick fence. Caldera sustained serious head injuries which required him to remain in hospital for some eight days. The appellant was also conveyed to hospital with a punctured lung and broken ribs, although he was released three days later. At the hospital a sample of his blood was taken and analysed. The appellant had a blood alcohol concentration of 1.52%.
On 10 March 2004 a traffic infringement notice was issued to the appellant. The offences the subject of the notice were driving a motor vehicle while exceeding the speed limit by 45 kilometres or more, which led to the suspension of the appellant's licence for a period of 12 months, and driving a motor vehicle whilst having a blood alcohol content exceeding the prescribed limit, which resulted in his licence being cancelled and his disqualification from obtaining any licence for a period of six months.
On 16 October 2004 the appellant was arrested at Tullamarine Airport as he was about to depart for Sri Lanka to visit his sick mother. On the following day he was charged with various offences arising from the events which occurred on 21 September 2004.
On 12 April 2005 the appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of negligently causing serious injury, contrary to s.24 of the Crimes Act 1958, the summary offence of driving a motor vehicle whilst having a blood alcohol content exceeding the prescribed limit, contrary to s.49(1)(g) of the Road Safety Act 1986 (“the Act”), and driving whilst disqualified, contrary to s.30(1) of the Act.
After a plea the appellant was sentenced to be imprisoned for a term of three years on the count of negligently causing serious injury, to a term of three months on the count of driving a motor vehicle whilst having a blood alcohol content exceeding the prescribed limit and to a term of two months on the charge of driving whilst disqualified. Two months of the sentence imposed in respect of the charge of driving a motor vehicle whilst having a blood alcohol level exceeding the prescribed limit and one month of the charge of driving whilst disqualified were cumulated upon each other and upon the sentence imposed in respect of the count of negligently causing serious injury, producing a total effective sentence of three years and three months. The sentencing judge fixed a minimum term of 18 months' imprisonment before the appellant was to be eligible for parole.
A single judge of this Court granted the appellant leave to appeal against the sentence. The appellant also foreshadowed an application for leave to appeal against conviction, but this was not pursued.
It is necessary to say something as to the character, antecedents and prospects of the appellant and the consequences of the accident.
The appellant is now 23 years old. He has no prior convictions apart from the convictions for driving offences which I have mentioned. The appellant's family live in Sri Lanka. The appellant came to Australia on a student visa and studied for a bachelor of commerce degree at Deakin University. The appellant successfully completed two years of the course before he was imprisoned. He also participated in sport and worked part-time for a cleaning company. The appellant's family is deeply religious and consequently the appellant had little experience of alcohol until he came to Australia. He did not continue his studies and his student visa has been cancelled. Accordingly he will be deported immediately upon his release from prison.
A psychologist's report was tendered during the course of the plea. The psychologist observed symptoms of depression and anxiety which in his opinion were linked to the appellant's "guilt and embarrassment over the results of his irresponsible behaviour". Another exhibit was a letter to the sentencing judge from the victim who said that the appellant was "still my best friend" and "I do not want him to go to jail because it won't make my injuries better and it would make me very sad." Letters from the appellant's former employer, staff at Deakin University and relatives and friends in Sri Lanka attesting to the appellant's good character were tendered during the course of the plea.
The sentencing judge mistakenly thought that the appellant had attempted to leave Australia in breach of the conditions of his bail. In fact he was not charged until after his arrest. Apparently her Honour treated that fact as an aggravating factor, for she immediately contrasted it with what she described as mitigating factors. As specific error has been identified, the sentencing discretion is re-opened.
In re-sentencing the appellant I bear in mind that he could rely on mitigating factors of some significance. He pleaded guilty. He was remorseful. He was of good character, save for the convictions for driving offences. He was relatively young. Nevertheless, a combination of excessive speed and consumption of alcohol by a man driving while his licence was suspended led to serious injury, which will have long term effects. General deterrence is an important consideration.
I would re-sentence the appellant to be imprisoned for a term of two years on the count of negligently causing serious injury, to a term of three months on the charge of driving a motor vehicle with a concentration of alcohol in his blood in excess of the prescribed limit and to a term of two months on the charge of driving while his licence was suspended. The total effective sentence is two years' imprisonment. I would fix a period of 14 months before the appellant is to be eligible for parole.
NETTLE, J.A.:
I agree that the judge erred by sentencing the appellant on the basis that he attempted to flee the jurisdiction in breach of his bail and by treating that as an aggravating circumstance. I am also of the view that the judge erred in failing to consider the extent of any overlap between the acts comprising count 1 and count 2. Those errors, as the learned presiding judge has said, result in the re-opening of the sentencing discretion.
The sentence of three years which the judge imposed on the count of negligently causing serious injury was a stern sentence. I am, however, not persuaded that it was beyond the range. As Mr McArdle for the Crown has submitted, this was a serious case of negligent driving, there were aggravating circumstances, and it warranted firm punishment.
Nevertheless, the discretion having been re-opened, and because of the mitigating considerations to which the learned presiding judge refers, I am disposed to agree with him that an appropriate sentence for that count would be two years.
I otherwise agree with the disposition of the appeal that he proposes.
BONGIORNO, A.J.A.:
I agree that the appeal should be upheld for the reasons advanced by the learned presiding judge and I agree with the re-sentencing which he proposes.
BUCHANAN, J.A.:
The orders of the Court will be:
The appeal is allowed.
The sentences passed below are set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of two years on the count of negligently causing serious injury, to a term of three months on the charge of driving a motor vehicle with a concentration of alcohol in the appellant's blood in excess of the prescribed limit and to a term of two months on the charge of driving while the appellant's licence was suspended.
The total effective sentence is two years' imprisonment. The Court fixes a period of 14 months before the appellant is to be eligible for parole.
The order made in the County Court on 22 April 2005 with respect to the disqualification of the appellant's driving licence is confirmed.
It is declared that a period of 430 days' imprisonment is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and that its details be entered in the records of the Court.
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