Saleh v The Queen
[2012] VSCA 210
•31 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2012 0093
| MOHAMMED SALEH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, WEINBERG JJA and T FORREST AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 August 2012 |
| DATE OF JUDGMENT | 31 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 210 |
| JUDGMENT APPEALED FROM | R v Saleh [2012] VSC 120 (Almond J) |
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CRIMINAL LAW — Application for leave to appeal against sentence— Applicant pleaded guilty to manslaughter by criminal negligence —Victim fatally struck by motor vehicle driven by applicant — Sentence of eight years and six months’ imprisonment with non-parole period of six years —Whether sentencing judge erred in consideration of current sentencing practices — Whether sentencing judge erred in treatment of guilty plea — Whether sentence manifestly excessive — No error demonstrated — Leave to appeal granted on manifest excess ground — Appeal dismissed — No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Melasecca Kelly & Zayler |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I agree with T Forrest AJA.
WEINBERG JA:
I also agree with T Forrest AJA.
T FORREST AJA:
The applicant pleaded guilty to manslaughter and was sentenced to eight years six months’ imprisonment with a non-parole period of six years.
The facts of the offending
The circumstances of the applicant’s offending are set out in considerable detail in his Honour’s sentencing remarks. I shall provide a bare summary only. On 27 May 2010, the applicant was one of a group who went to a nightclub in Thomastown. A rival group, including the deceased, was also at that nightclub. There was a history of acrimony between the groups and an altercation took place involving bottle throwing and the discharge of a pen pistol.
The applicant went to a white Holden sedan with two of his friends. Others in his group entered a black Honda four wheel drive. With the Honda leading off, they drove back towards the opposing group. They were pelted with bottles and/or rocks. They drove to a roundabout about one kilometre away and then returned to the opposing group. Again their vehicles were pelted. They again drove past the group and again returned.
The deceased was standing on the side of Settlement Road near a parked car. The applicant approached him at between about 30 kilometres per hour and 50 kilometres per hour. The black Honda travelling in front swerved at but did not strike the deceased. The applicant’s car also swerved at the deceased, striking both
him and the parked car. The applicant failed to stop or slow down and decamped in the damaged Holden.
The deceased survived surgery for a time, suffered post-operative complications, and died on 1 June 2010.
On 29 May 2010, the applicant admitted in a police interview that he was the driver of the Holden. On 7 February 2011, he resiled from this position. He then told police that in fact he was not the driver and that he had deliberately wiped his own blood on the airbag of the Holden so that he could take responsibility for the incident.
Procedural background
The applicant, who had been charged with murder, conducted a contested committal hearing. On the eve of the murder trial he offered to plead guilty to manslaughter, which offer was accepted by the prosecution.
This application
The applicant seeks leave to advance three grounds of appeal:
Ground 1 - The learned sentencing judge erred in his consideration of current sentencing practices.
Ground 2 - The learned sentencing judge erred in his treatment of the applicant’s plea of guilty.
Ground 3 - The sentence imposed is manifestly excessive.
I shall deal with these grounds in turn.
Ground 1 - The learned sentencing judge erred in his consideration of current sentencing practices.
The applicant submits that his Honour failed to have regard to current sentencing practices for culpable driving. It was contended that these would have provided some guidance to his Honour who was considering an equivalent offence of negligent manslaughter by motor vehicle. In my view, this submission has not been made out. An analysis of his Honour’s reasons for sentence demonstrates the following:
· His Honour considered that discerning current sentencing practices for the crime of manslaughter is particularly difficult given the infinite variation of circumstances that may constitute that crime.
· His Honour took the view that sentences for culpable driving by criminal negligence can offer some guidance.[1]
· His Honour noted but was not greatly assisted by statistics that dealt with the median and mode terms of imprisonment for culpable driving causing death and manslaughter.[2]
[1]R v Saleh [2012] VSC 120, [35] (‘Saleh’).
[2]Ibid, [36].
In my view, this approach was entirely unremarkable. Section 5(2) of the Sentencing Act 1991 requires that a sentencing judge “have regard to” a number of sentencing factors, one of which is current sentencing practices. It does not require that any of those factors influence the ultimate sentence. Put simply, a sentencing judge is required to consider those factors; he or she may act upon them but is not required to.
For my part, I also consider that the utility of median and mode statistics is limited by the fact that no distinction is made between sentences imposed after a plea as opposed to those imposed after a contested trial.
Under this ground the applicant also argues that his Honour erred in undertaking a comparison between this case and the similar case of R v Borthwick.[3] At the plea hearing counsel for the applicant relied on this case as being sufficiently comparable as to provide some assistance to the Court in fixing an appropriate sentence. The applicant contends that his Honour failed to properly consider Borthwick and compare Mr Borthwick’s circumstances with the applicant’s. In particular, the applicant in his written case contended that his Honour wrongly concluded that the sentence in Borthwick was moderated on account of mental health issues. Mr Dann for the applicant developed this argument in his oral submissions.
[3][2010] VSC 813 (‘Borthwick’); see also Borthwick v R [2012] VSCA 180.
I am unable to accept this submission. At paragraph 42 of Borthwick her Honour said she took into account a psychologist’s opinion when considering aspects of moral culpability and general and specific deterrence. Her Honour subsequently qualified the weight she gave to that opinion but to my mind she did not reject it. There were other differences between the circumstances of Mr Borthwick and the applicant. Borthwick was younger than the applicant[4] and had no prior convictions. Borthwick also offered to plead guilty to culpable driving at an early stage.
[4]18 at the time of offending.
I would not grant leave to appeal on ground 1.
Ground 2 - The learned sentencing judge erred in his treatment of the applicant’s plea of guilty.
Under this ground, the applicant submits that his Honour failed to take into account the fact that the applicant was originally charged with the offence of murder. It was submitted that the applicant’s plea to manslaughter was a negotiated plea late in proceedings and that a greater sentencing discount ought to have been allowed than in fact occurred.
In my view, there is little in this ground. As I have observed, the applicant recanted on his admission that he was the driver. From that time until very shortly before the trial, his position was that he was not the driver. He contested committal proceedings on this basis. Mr Dann pointed out that the applicant was also charged with other criminal offences said to have occurred earlier in the evening, and these too were contested at the committal. The fact remains however that the applicant made no early offer to plead guilty to manslaughter or culpable driving – he could not because his case was that he was not the driver. I consider that it was well open to his Honour to limit the “plea discount”. I should add that an examination of his Honour’s reasons demonstrates that the applicant received “significant benefit”[5] on this basis at any event.
[5]Saleh [2012] VSC 120, [16].
I would not grant leave on this ground.
Ground 3 - The sentence imposed was manifestly excessive.
The applicant concedes that this is an example of very serious offending involving the loss of a young life. The applicant submitted that there were important matters in mitigation:
(a)the applicant’s plea of guilty;
(b)his youth (he was 21 at the time of offending);
(c)his relative lack of prior convictions;
(d)his greatly disadvantaged upbringing; and
(e)his sound prospects of rehabilitation.
There was a good deal that could be said on the applicant’s behalf. His Honour’s sentencing remarks demonstrate, in my view, that he gave each of these mitigatory matters his conscientious consideration. He also gave the same quality of consideration to the objective gravity of the offending and the need for general and specific deterrence.
It is trite to say that this type of ground allows for little productive argument or analysis. Leave to appeal will only be granted if the applicant is able to demonstrate that it is reasonably arguable that the sentence is wholly outside the range of sentencing options open to his Honour. For my part, I regard the sentence as stern but within the sentencing range. Making due allowance for the very subjective nature of this exercise, I would be inclined to grant leave to appeal on this ground, but to dismiss the appeal.
Conclusion
I would refuse leave to appeal on grounds 1 and 2. I would grant leave to appeal on ground 3, but dismiss the appeal.
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