Sahhitanandan v The Queen - [2019] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0214

MAIROWN SAHHITANANDAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2019
DATE OF JUDGMENT:	29 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 115
JUDGMENT APPEALED FROM:	(2018) 85 MVR 361 (Champion J)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing serious injury – Crimes Act 1958 s 319(1A) – Pre-sentence immigration detention – Appellant’s visa cancelled due to criminal charges – Migration Act 1958 (Cth) s 116(1)(g), Migration Regulations 1994 (Cth) reg 2.43(1)(p)(ii) – Immigration detention not pre-sentence custody under Sentencing Act s 18(1) – Whether judge erred in holding detention for reasons not related to proceeding – Pre-sentence immigration detention to be taken into account in broad and practical way – Immigration detention not punitive – Nature and severity of immigration detention restrictions and conditions relevant – Underwood (a Pseudonym) v The Queen [No 2] [2018] VSCA 87, Akoka v The Queen [2017] VSCA 214, R v Renzella [1997] 2 VR 88, R v Heaney (Victorian Court of Appeal, 27 March 1996), considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S J Tovey	Stary Norton Halphen
For the Respondent	Ms A S Ellis	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

McLEISH JA
WEINBERG JA:

On 15 May 2018, the appellant pleaded guilty to one charge of dangerous driving causing serious injury.[1] On 18 July 2018 he also pleaded guilty to a summary charge of driving while disqualified.[2] He was sentenced to a term of 2 years and 3 months’ imprisonment on the first charge and two months on the summary charge, with one month to be served cumulatively on the first sentence. The total effective sentence was therefore 2 years and 4 months’ imprisonment. The judge fixed a non-parole period of 1 year and 6 months.
[1]Crimes Act 1958 s 319(1A). The maximum penalty is 5 years’ imprisonment.
[2]Road Safety Act 1986 s 30(1). The maximum penalty is 2 years’ imprisonment.

The judge declared pre-sentence detention in the amount of 166 days. The principal question in the appeal concerns the manner in which the judge addressed the fact that the appellant had been in immigration detention for a period of approximately 17 months before bail was revoked and the appellant was remanded in custody, at the conclusion of a plea hearing conducted on 18 July 2018.

Circumstances of offending

On 25 October 2016, a friend of the appellant, Kidnapillai Kandipan, drove the appellant’s Toyota HiAce van to an area of parkland in Dandenong West. The passengers in the van were the appellant and two females. Those in the van spent time in the parkland drinking alcohol and the appellant became intoxicated. Subsequently an argument broke out within the group and the appellant decided to leave. For that purpose, despite having been disqualified from driving for 12 months on 15 February 2016, the appellant got into…

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.

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Details

Case: [2019] VSCA 115
Decision Date: 29 May 2019

CaseChat Overview and Summary

The appellant, Sahhitanandan, was convicted for dangerous driving causing serious injury under section 319(1A) of the Crimes Act 1958. The case was heard in the Court of Appeal, where the primary issue was whether the trial judge erred in failing to consider the appellant's immigration detention as pre-sentence custody. Sahhitanandan's visa was cancelled due to criminal charges, and he was subsequently detained under section 116(1)(g) of the Migration Act 1958 and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994. The appellant argued that the judge should have regarded the immigration detention as pre-sentence custody under section 18(1) of the Sentencing Act, which would have affected the severity of the sentence.

The Court of Appeal examined whether the trial judge was incorrect in holding that the immigration detention was not pre-sentence custody because it was for reasons unrelated to the proceeding. The court held that immigration detention should be taken into account in a broad and practical manner, focusing on whether it was punitive in nature. The court considered precedents such as Underwood (a Pseudonym) v The Queen [No 2], Akoka v The Queen, R v Renzella, and R v Heaney, which provide guidance on the treatment of immigration detention in sentencing. The Court concluded that immigration detention was not punitive and did not constitute pre-sentence custody, thereby not affecting the sentence imposed.

Given the court's findings, the appeal was dismissed. The reasoning was that the nature and severity of the restrictions and conditions of immigration detention were not punitive in nature and did not warrant being considered as pre-sentence custody. The court emphasised that the focus should be on the practical implications of the detention rather than its legal characterisation. The final order of the court was to uphold the original sentence imposed on the appellant, without adjusting it based on the immigration detention.

Orders