Sarikaya v The Queen
[2015] VSCA 236
•11 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0057
| REMO SARIKAYA | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES: | MAXWELL P and KAYE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 August 2015 |
| DATE OF JUDGMENT: | 11 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 236 |
| JUDGMENT APPEALED FROM: | DPP v Sarikaya (Unreported, County Court of Victoria, Judge Parsons, 9 May 2015) |
---
CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death, failure to stop after accident, failure to render assistance – Sentence of 4y for failure to stop – Total effective sentence 5y, non-parole period 3y 6m – Whether manifestly excessive – Victim elderly pedestrian – Knocked down when applicant reversed – Applicant drove off – Attempt to conceal involvement – High culpability – Verdins propositions 5 and 6 – Moderate mitigation only – Sentence within range – Appeal dismissed – Wassef v The Queen [2011] VSCA 30 followed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J R Cass | Victoria Legal Aid |
| For the Crown | Mr P B Kidd SC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
KAYE JA:
The appellant was convicted, following a trial, of dangerous driving causing death, failing to stop after an accident, and failing to render assistance after an accident. Following a plea hearing conducted on 3 April and 8 May 2014, he was sentenced on 9 May 2014 as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Dangerous driving causing death
10 y
2 y
12 m
2
Failure to stop after an accident
10 y
4 y
Base
3
Failure to render assistance after an accident
10 y
9 m
Total Effective Sentence:
5 y
Non-Parole Period:
3 y 6 m
Pre-sentence Detention Declared:
91 days
Other orders: Licence Cancelled and Disqualified for 3 years from 9 May 2014
On 23 June 2015, Weinberg JA granted leave to appeal on the ground that
The individual sentences, degree of cumulation and the non-parole period imposed on the appellant are manifestly excessive in particular having regard to:
(a) the mental health of the appellant;
(b)the individual sentences on charges 1 and 3, which reflect an over weighting of the seriousness of the offending;
(c)cumulation imposed on charge 1 — in light of the principle of totality; and
(d) current sentencing practices for failing to stop after an accident.
Circumstances of the offending
On the morning of 23 September 2011, the appellant reversed his motor vehicle out of a driveway in St Georges Road, Shepparton. In doing so, his vehicle struck an 89 year old female pedestrian, Gemma Bell, who was walking on the footpath supported by a walking frame. The impact of the collision caused Ms Bell to fall to the pavement, and to thereby suffer a severe head injury. The appellant was convicted on count 1, dangerous driving causing death, on the basis that he had failed to keep a proper lookout while reversing his vehicle onto the roadway. Immediately after the collision, the appellant drove off, leaving Ms Bell lying on the ground. It is that conduct which was the basis of the appellant’s conviction on charges 2 and 3, namely, failing to stop after an accident, and failing to render assistance after an accident.
Immediately after the collision, passers-by, including a registered nurse, rendered first aid to Ms Bell. A few minutes later paramedics arrived. Ms Bell was stabilised, and conveyed to the emergency department at Goulburn Valley Health. At hospital, scans revealed a significant intra-cranial haemorrhage. After discussing her prognosis with doctors, family members decided that she should receive palliative care, and life support was withdrawn. Ms Bell died approximately five hours after having been struck by the appellant’s vehicle.
After leaving the scene of the accident, the appellant then sought to conceal his involvement in the collision by parking his vehicle in his next door neighbour’s carport, where he removed the oil, and air filter of the vehicle, and cut the fuse to start the vehicle. In addition, he attempted to conceal his movements by giving his neighbour a false account, in order to help to maintain the illusion that he had not driven the vehicle at that time. However, and notwithstanding those attempts by the appellant, he was arrested that evening.
The plea hearing
The plea, made on behalf of the appellant, focused significantly on his psychological background.
At the time of the offence, the appellant was 33 years of age. He was born and raised in Kyabram. He has a 15 year old son to whom he is very close, by a previous relationship. He was also married in his early 20s, but that marriage was later dissolved.
The appellant was educated to Year 10 level. After leaving school he worked in a range of unskilled labouring jobs. However, at the time of the offence he was not employed, and he had not worked since the age of 22 years.
The appellant had a long and complex medical and psychological history. In approximately 2002, he was diagnosed by Dr Orchard, a psychiatrist, as suffering from a bipolar disorder. Dr Orchard prescribed a combination of anti-psychotic/mood-stabilising medication Olanzapine and the mood-stabilising medication Epilim. At about the same time, the appellant was involved in a motor vehicle accident in which he sustained a lower back injury. He was prescribed Kapanol (which is morphine-based) for his pain. It appears that he remained on that analgesic medication for some time, and he has become addicted to it.
In December 2002, the appellant was remanded in custody in the Melbourne Assessment Prison in respect of charges involving the cultivation of illicit drugs. He was placed in the Acute Assessment Unit for treatment. The psychiatric report of Forensicare, dated 27 December 2002, noted that the appellant had a documented history of bipolar affective disorder, and that during his current term of incarceration he had experienced an exacerbation of that disorder, predominantly of a hypomanic nature.[1] The report also noted that the appellant had a long history of illicit substance misuse, notably marijuana dependence and stimulant abuse. He also abused prescribed benzodiazepines.
[1]Hypomania is ‘a mild form of mania, characterised by elation and quickness of thought’: Shorter Oxford
For some time, the appellant’s condition was managed by his general practitioners — Dr Tisdall and, subsequently, Dr John Mackellar. A number of reports of Dr Mackellar were tendered on the plea. Those reports documented the continuing prescription of medication in respect of the appellant’s diagnosis of bipolar disorder, and also in respect of his chronic pain.
On the plea, a report of a forensic psychologist, Mr Timothy Watson-Munro, was tendered. Testing administered by Mr Watson-Munro confirmed his clinical impressions that the appellant suffered from a depressive illness with features of an anxiety disorder. He noted that the appellant described a complex developmental history, referable to the death of his mother when he was young, considerable social instability in his upbringing, and an unstable work history. The appellant’s psychiatric history was complex. Mr Watson-Munro noted the diagnosis of bipolar affective disorder, and that the appellant had been under treatment by a range of medications for that condition. He expressed the view that as a result of his condition, the appellant would find a term of imprisonment difficult.
The appellant was also examined by Dr Adam Deacon, a consultant psychiatrist, employed by the Victorian Institute of Forensic Mental Health, on 14 April 2014. In his report, Dr Deacon noted that the appellant had originally been diagnosed as suffering from a bipolar disorder by Dr Orchard. The basis of that diagnosis was somewhat unclear. Dr Deacon noted that Dr Orchard had subsequently had his psychiatric registration withdrawn, ‘because he had inaccurately diagnosed bipolar disorder in most of his patients’. Nevertheless, the appellant provided a history which, though scant in detail, was ‘possibly consistent’ with a history of bipolar disorder. Assuming that to be so, Dr Deacon was of the view that the appellant’s condition had not been appropriately managed.
The appellant was unwilling to discuss the current offence in any detail with Dr Deacon. He believed that he was not guilty of the crime for which he had been convicted. Dr Deacon was of the view that, while it was possible that the appellant was experiencing a period of depression, that condition was not related to the commission of the offence. Dr Deacon also noted that the appellant was proving difficult to manage in the Metropolitan Remand Centre. He had ‘taken umbrage’ at the decision to withdraw him from prescribed opioid analgesia. As a result, he had become frustrated and disgruntled. Although there was no evidence that he was experiencing any marked alteration of his mental wellbeing, Dr Deacon nevertheless considered that he was more vulnerable than a person without such a complex array of mental and medical problems.
Reasons for sentence
In his reasons for sentence, the judge stated that he regarded the driving that constituted charge 1 to be towards the lower end of the scale of dangerous driving cases. However he took the view that the appellant’s offending, in respect of charge 2, was a ‘significant and bad example of an offence of this kind’. His Honour stated[2]:
I have no doubt you knew you had collided with an elderly lady and you would have seen and/or heard the walking frame hit your car. You chose to drive off knowing of these matters and then sought to disguise your car and your movements in order to maintain the lie that you had not driven the car at that time, notwithstanding you subsequently of course agreed that you had at trial.
[2]DPP v Sarikaya [2014] VCC 654, [33].
The judge considered that the offending on charge 3 was not of great significance, because, fortuitously, care was available almost instantaneously to Ms Bell. It was for that reason that the judge made orders for total concurrency in respect of charge 3.
The judge also noted that the appellant had an extensive number of previous convictions, both for criminal offences and for driving offences. In particular, he had been before the courts on nine occasions between 2001 and 2011 for various breaches of the road laws.
On the other hand, the judge accepted that there were mitigating circumstances in the appellant’s case. He accepted, on the basis of the psychological and psychiatric evidence, that propositions 5 and 6 identified in R v Verdins[3] were applicable. In other words, his Honour accepted that a sentence of imprisonment would weigh more heavily on the appellant because of his mental state and that there was a serious risk that imprisonment might have a significant adverse effect on his mental state. However, the judge was not confident of the appellant achieving rehabilitation, noting that it was necessary first that the appellant’s condition be properly examined, and treated. His Honour considered that he should maximise the appellant’s prospects of rehabilitation by allowing a ‘slightly longer than normal parole period’.
[3](2007) 16 VR 269, 276 [32].
In conclusion, the judge considered that the principles of general deterrence and specific deterrence were of importance in this case. He also considered that it was necessary to protect members of the community from the appellant’s behaviour.
The appellant’s submissions
It was submitted on behalf of the appellant that each of the individual sentences, the cumulation (of 12 months of the sentence on charge 1 on the base sentence — charge 2), and the non-parole period, were each manifestly excessive. Although the sentencing judge had accepted that, in light of the appellant’s diagnosis of bipolar disorder, propositions 5 and 6 described in Verdins[4] applied, nevertheless the length of the total effective sentence, the length of each individual sentence, and the minimum non-parole period, suggested that the judge failed to give sufficient weight to that factor.
[4]Ibid.
It was further submitted that the sentence of 2 years’ imprisonment on charge 1 (dangerous driving causing death) was not commensurate with the judge’s characterisation of the appellant’s conduct as being ‘… towards the lower end of the scale of criminality with respect to that offence’. Similarly, it was submitted that the sentence of 9 months’ imprisonment on charge 3 (failing to render assistance) was not commensurate with the judge characterising the appellant’s conduct as ‘… not of great significance given what happened’.
The submissions on behalf of the appellant focused on the sentence of 4 years’ imprisonment on charge 2 (failing to stop after an accident). There are no Sentencing Advisory Council statistics in relation to that offence. However, the appellant appears to have been given the highest sentence for that offence in a case that has come for consideration before this court. In support of that proposition, counsel for the appellant referred to a number of authorities the key features of which he helpfully set out in a table. Those cases were: DPP v Chhatre;[5] Tokay v The Queen;[6] Veerman v The Queen;[7] Nguyen v The Queen;[8] Wassef v The Queen;[9] Grewal v The Queen;[10] The Queen v Mohamed;[11] R v Harding[12] and DPP v Martinez.[13]
[5][2014] VSCA 280.
[6][2014] VSCA 285.
[7][2012] VSCA 194 (‘Veerman’).
[8][2014] VSCA 53.
[9][2011] VSCA 30.
[10][2011] VSCA 331 (‘Grewal’).
[11][2009] VSCA 158.
[12][2008] VSCA 124.
[13][2008] VSCA 165 (‘Martinez’).
In particular, counsel relied on the sentences imposed in Veerman and Martinez which, he submitted, were materially comparable with the present case. In Veerman, the appellant had pleaded guilty to a number of offences including dangerous driving causing death, and failing to render assistance after an accident. In respect of the latter offence, he was sentenced to 2 years’ imprisonment. In Martinez, the appellant was convicted by a jury of dangerous driving causing death and failing to render assistance. In respect of the latter offence, he was sentenced to 18 months’ imprisonment. Counsel submitted that the sentence in those cases demonstrated the appropriate sentencing range for the offence in the previous case.
Finally, counsel submitted that the non-parole period fixed by the sentencing judge was excessive, in light of the statement by his Honour that he considered that ‘a slightly longer than normal parole period is appropriate’. It was contended that the non-parole period, constituting 70 per cent of the head sentence, was not consistent with that stated intention of the judge.
The respondent’s submissions
Senior counsel for the respondent submitted that the sentences imposed by the judge were not outside the permissible range, and were not manifestly excessive. It was submitted that the sentence imposed in respect of the second charge did not indicate a failure by the sentencing judge to give sufficient weight to the mitigating circumstances identified by the judge, in particular, the application of the fifth and sixth propositions stated in Verdins’ case. The judge correctly found — it was said — that the case constituted a serious instance of the offence of failing to stop after an accident. The appellant had fled the scene in order to avoid detection and prosecution in respect of his driving. He compounded his flight by seeking to conceal his involvement in the offence. The appellant knew or ought to have known that he had collided with an elderly lady, who was using a walking frame. He had a long list of serious previous convictions, which included nine prior court appearances in respect of traffic offences. Based on those circumstances, and giving appropriate weight to the Verdins factors, it was submitted that the sentence imposed by the judge in respect of charge 2 was within the permissible range of sentences available to the judge.
Counsel for the respondent further submitted that there were relevant distinguishing features in respect of the cases relied on by counsel for the appellant. With the exception of Grewal and Martinez, in each other case the accused had pleaded guilty to the offence of failing to stop or failing to render assistance after an accident. Counsel submitted that Veerman’s case was distinguishable, because in that case the sentencing judge found that the principles stated in Verdins applied in respect of the moral culpability of the accused, and the accused did not have any previous convictions. He pointed out that Martinez was decided in 2008, and that sentencing practices in respect of the offence in question have altered since then. In addition, in that case, the accused had in fact stopped his vehicle to check the pulse of the victim.
Counsel for the respondent further submitted that the sentences imposed in respect of the first charge (dangerous driving causing death) and the third charge (failing to render assistance) were well within the permissible range.
Counsel did acknowledge that it was arguable that the non-parole period, fixed by the sentencing judge, was not consistent with his Honour’s statement that he considered that a ‘slightly longer than normal parole period’ was appropriate. Counsel, fairly, acknowledged that it was open to the court to find that there had been an error in the exercise of the sentencing discretion in that respect.
Consideration
Apart from the point made in respect of the non-parole period, each of the sentences imposed by the judge, and the total sentence, are sought to be impugned by the appellant on the basis that they are manifestly excessive. The principles relating to such a ground of appeal are well established. The imposition of a sentence involves the exercise of a judicial discretion. In order to establish error in the exercise of that discretion, it is not sufficient that this court considers that it might or would have imposed a lower sentence than that given to the appellant. Rather, in order that the ground succeed, it must be demonstrated that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[14] For that reason, a complaint that a sentence is manifestly excessive is difficult to establish.
[14]See, for example, Clarkson v R (2011) 32 VR 361, 384 [89]; Tokay v The Queen [2014] VSC 285, [24] (Santamaria JA).
As we have stated, the submissions made on behalf of the appellant focused principally on the sentence imposed in respect of count 2, namely failing to stop after an accident, contrary to s 61(1) of the Road Safety Act 1986. The maximum sentence for such an offence is 10 years’ imprisonment, reflecting the seriousness with which Parliament has intended that the offence be considered. The verdict of the jury, in respect of that offence, means that it was satisfied beyond reasonable doubt that the appellant knew, or ought reasonably to have known, that the accident had occurred, and that it had resulted in a person being killed or suffering serious injury.[15]
[15]Road Safety Act 1986 s 61(3)(a).
The appellant does not dispute the judge’s characterisation of his offending as a particularly serious instance of the offence. The appellant knew that the accident had occurred as a result of his own wrongdoing.[16] As the judge found, the appellant must have been aware that the person with whom he collided was an elderly lady who was sufficiently infirm to require the use of a walking frame. The appellant fled in order to avoid his responsibility and punishment for his offending. He compounded his culpability by taking deliberate steps to conceal his involvement in the accident, taking this case out of the category of those cases which involve flight actuated by a moment of panic.
[16]Cf R v Harding [2008] VSCA 124, [24] (Lasry AJA); Wassef v R [2011] VSCA 30, [31] (Redlich JA).
Those factors amply support the finding by the judge that this case involved a ‘most serious example’ of the offence for failing to stop after an accident. Counsel for the appellant did not rely, before the sentencing judge, nor before this court, on any fact or circumstance which mitigated the appellant’s moral culpability in respect of that offence.
A number of decisions by this court have emphasised the importance of the moral and legal obligation of a driver to remain at the scene after an accident, and the gravity of the offence for which the appellant has been found guilty. As Santamaria JA stated in Tokay v The Queen:[17]
The maximum (sentence) is now ten years. That maximum penalty reflects the serious community concern and disapproval of the failure to stop and render assistance. Several judges of the Court have described the reprehensible nature of the offence, particularly in circumstances where the victim has suffered serious injury, and have referred to the fact that offenders must expect a substantial term of imprisonment.
[17][2014] VSCA 285, [26] (citations omitted).
In 2005, the maximum sentence for the offence was increased from 2 years to 10 years’ imprisonment. The Second Reading Speech of the Minister for Transport, and a number of decisions of this court, have recognised that the increase in the maximum sentence was designed to dissuade persons, involved in an accident, from fleeing the scene. The fivefold increase in the maximum sentence makes it plain that Parliament intended that general deterrence be given significant weight in the exercise of the sentencing discretion in a case such as this.[18]
[18]Tang v The Queen [2013] VSCA 31, [18] (Harper JA); R v Harding [2008] VSCA 124, [18] (Lasry AJA); Nguyen v R [2014] VSCA 53, [21] (Neave and Weinberg JJA).
The principal submission, made in respect of count 2, was that the sentence was the highest of any sentence in a case which has come before the Court of Appeal. Reference to comparable cases is relevant to establish an appropriate range of sentences for such a case, and thus to achieve a measure of consistency in sentencing.
As counsel for the respondent pointed out, however, all but two of the previous decisions relied on by counsel for the appellant involved pleas of guilty. In Veerman, the accused’s moral culpability for the offending was relevantly mitigated by reason of his psychological condition. The decision of this court in Martinez was made on appeal by the Director of Public Prosecutions, when the sentencing discount for double jeopardy was still operative in respect of such an appeal. Further, in that case the accused did stop, albeit only for a short time, after the accident, and checked the pulse of the victim. In addition, Martinez was decided seven years ago, when sentences for such an offence were lower than those that are now considered to be appropriate.
The appropriate range of available sentences, in a particular case, is to be determined by correct application of the relevant sentencing principles. In that regard, we adopt and endorse the views expressed by Redlich JA Wassef v R.[19] In that case, the appellant had pleaded guilty for failing to stop after an accident. He was sentenced for that offence to 3 years and 6 months’ imprisonment. Redlich JA (with whom Maxwell P agreed) stated:
As a consequence of the increase in the maximum penalty for failing to stop, it is now to be viewed as a much more serious offence than was hitherto the case. Not only has the maximum increased fivefold but it is twice as much as the maximum penalty for the offences of reckless conduct endangering a person and dangerous driving causing serious injury. Accordingly, guided by the new maximum sentence, the sentencing judge was entitled to view the relative seriousness of the two offences as he did.
The appellant’s departure from the scene without regard for the welfare of the other driver with whom he had collided or the seriously injured cyclist that he left on the roadway, was inhumane. He should have remained to render such assistance as he could to the cyclist and the other driver. He knew that he had struck the cyclist in circumstances where it was likely that the victim would have been injured. It was his legal responsibility to remain at the scene. Knowing of these circumstances, he deliberately fled from the scene, presumably to protect himself. Drivers who, in breach of their duty, depart from the scene of an accident in circumstances where it is likely to be inferred that they did so to avoid the consequences of unlawful conduct, cannot expect that the courts will give weight to exculpatory reasons for why they have done so which are proffered after the event. They must expect the imposition of substantial terms of imprisonment.
It appears that three and a half years’ imprisonment is the highest sentence that has been imposed for the offence of failing to stop contrary to s 61 of the Road Safety Act 1986. When regard is had to the increased maximum penalty, it was, in my opinion, a sentence that was well within the sentencing range now available for this offence.[20]
[19][2011] VSCA 30 (‘Wassef’).
[20]Ibid, [30]–[32].
Those principles apply with some force to the present case. As we have noted, the case is a particularly serious instance of the offence. The appellant does not have the benefit of a plea of guilty as a mitigating circumstance. While the fifth and sixth propositions stated by this Court in Verdins applied, the facts supporting those principles indicate that that factor deserved, at most, moderate weight as a mitigating factor. In those circumstances, and bearing in mind the principles stated by Redlich JA in Wassef, we consider that the sentence, imposed by the sentencing judge, has not been demonstrated to be outside the range reasonably open in the circumstances of the case.
Nor are we satisfied that the sentence imposed in respect of the first charge, dangerous driving causing death, was outside the permissible range. The sentencing judge did characterise the appellant’s offending as ‘towards the lower end of the scale’ of criminality with respect to the particular offence. However, it must be borne in mind that, in order that an accused be guilty of dangerous driving, the jury must be satisfied beyond reasonable doubt that the driving involved a real, and not speculative, risk of death or serious injury to another person, that significantly exceeded the ordinary risks of the road, including the risk of driving by persons who may drive with less than reasonable care. In particular, the accused’s driving must have involved a serious breach by him of the proper conduct of a vehicle on the roadway.[21] The maximum sentence for such an offence is 10 years’ imprisonment, again reflecting the gravity of the offence. In those circumstances, we consider that the sentence imposed by the sentencing judge was not wholly out of range, and thus was not manifestly excessive. Nor do we consider that the cumulation of one year of that sentence, on the base sentence (charge 2) was manifestly excessive.
[21]R v De Montero (2009) 25 VR 694, 716 [80]; see also R v Coventry [1938] SASR 79, 85-6; McBride v R (1966) 115 CLR 44, 50 (Barwick CJ); Jiminez v R (1992) 173 CLR 572, 579.
Little argument was addressed to us in respect of the sentence of 9 months’ imprisonment for the third charge, failing to render assistance after an accident. While the judge correctly observed that, in the circumstances, the appellant’s offending, in that respect, was of less consequence, because others were present to assist, nevertheless the appellant breached his moral and legal obligation in circumstances in which he knew or ought to have known that, as a consequence of the collision, an elderly lady, using a walking frame, had either died or suffered serious injury. In those circumstances, we do not consider that a sentence of 9 months’ imprisonment, for failing to render assistance to such a person, could be said to be manifestly excessive.
The final point made by counsel for the appellant related to the non-parole period fixed by the sentencing judge. Notwithstanding the concession made by counsel for the respondent, we do not consider that the appellant has demonstrated error in that regard. The sentencing judge only indicated that he considered that a ‘slightly’ longer than normal parole period was appropriate. The non-parole period fixed does not, manifestly, demonstrate that the judge failed to allow such a ‘slight’ reduction from the ‘normal’ parole period. The judge was not sanguine about the appellant’s prospects of rehabilitation. He also considered that, in light of the lengthy list of the appellant’s previous convictions, the protection of members of the community was relevant. In those circumstances, the minimum non-parole period fixed by the sentencing judge was not manifestly excessive.
This last complaint serves to illustrate, once again, why sentencing judges are well advised to avoid using words like ‘normal’ and ‘usual’ in connection with the fixing of a non-parole period. As the Court has pointed out previously, the use of such terms is apt to mislead and to create false expectations which then give rise to appeals.[22]
[22]Wallace v The Queen (2012) 35 VR 520, 523 [16]; Kneifati v The Queen [2012] VSCA 124, [27]; Kumova v The Queen (2012) 37 VR 538, 547-8 [34].
Conclusion
For the foregoing reasons, the appellant has not demonstrated any error in the exercise by the judge of his sentencing discretion. Accordingly, the appeal must be dismissed.
---
19
21
0