Solomano v The Queen

[2013] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0111 

ANTHONY LEE SOLOMANO

Applicant

v.

THE QUEEN

Respondent

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JUDGES:	WEINBERG and WHELAN JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2013
DATE OF JUDGMENT:	14 November 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 320
JUDGMENT APPEALED FROM:	DPP v Solomano (Unreported, County Court Of Victoria, Judge Pilgrim, 27 May 2013)

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CRIMINAL LAW – Application for leave to appeal against sentence – Non-parole period manifestly excessive given head sentence – Leave granted and appeal allowed – No point of principle.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P A  Stefanovic	Victoria Legal Aid
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. I will invite Lasry AJA to deliver the first judgment in this matter.

LASRY AJA:

1. On 6 May 2013, the applicant, now 31 years of age, pleaded guilty in the County Court sitting at Ballarat, to one charge of culpable driving causing death, two charges of negligently causing serious injury and one charge of failing to render assistance after an accident. 

1. On 27 May 2013, he was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Culpable driving causing death [Crimes Act 1958 (Vic) s 318]	20 years [Crimes Act 1958(Vic) s 318(1)]	5 years’ imprisonment	Base
2	Negligently cause serious injury [Crimes Act 1958 (Vic) s 24]	10 years [Crimes Act 1958(Vic) s 24]	3 years	9 months
3	Negligently cause serious injury	10 years	3 years	9 months
4	Fail to render assistance after accident [Road Safety Act 1986 (Vic) s 63(3)	10 years or 1200 penalty units	2 years	6 months
Total Effective Sentence:		7 years’ imprisonment
Non-Parole Period:		6 years
Pre-sentence Detention Declared:		21 days
6AAA Statement:		9 years’ imprisonment, with non-parole period of 7 years.
Other orders: All licences and/or permits held by the applicant were cancelled and he was disqualified from obtaining any such licence or permit  for 6 years. Declaration pursuant to s89(1)(d) of the Sentencing Act 1991 that applicant was under the influence of alcohol at the time the offence was committed.

1. The applicant now applies for leave to appeal against his sentence on the following ground:

The non-parole period of six years’ imprisonment is manifestly excessive having particular regard to:

(a) Good prospects of rehabilitation

(b) Absence of relevant prior convictions

(c) The discount available for his plea of guilty

(d) Impaired mental functioning was given no or insufficient weight

(e) The gap between the head sentence and the non-parole period is insufficient.

1. In its written case the respondent concedes that the appeal should succeed.

Circumstances of offending

1. The offending took place in the following circumstances.  On 4 February 2011, the applicant and his friends, Kiefer Wilson (aged 19 years), Trent Bunney (aged 19 years) and Nathan Scott (aged 27 years), were drinking and socialising together.  They then got into the applicant’s Holden Commodore and at about 10.43 pm, on the accounts given by witnesses, as the applicant drove Hertford Street, Sebastopol at high‑speed, in the near dark and in light rain, his vehicle veered off the road and struck a concrete kerb before crossing the grass nature strip and colliding with a parked car and a tree. 

1. As a result of the impact, Kiefer Wilson, who had been on the left rear passenger side of the car, suffered fatal injuries and died in the operating theatre at 1.40 am on 5 February 2011.  Those events underpin Charge 1, culpable driving causing death.

1. Trent Bunney was in the front passenger seat.  He suffered a broken pelvis and an urethral rupture.  He was discharged from hospital on 9 February 2011.  Those facts form the basis of Charge 2, negligently cause serious injury.

1. Nathan Scott was in the middle passenger seat.  He suffered a broken pelvis and fractured spine and was discharged from hospital on 16 February 2011.  Those facts form the basis of Charge 3, negligently cause serious injury.

1. The applicant received only minor injuries.  He was assisted from the car by a number of witnesses who had stopped to help.  He had tried to pull Bunney from the front passenger seat and said to him, ‘Come on, mate.  We have to get out of here.’  He was also heard to say, ‘I've got to go.  I've got a job.  I've got a full licence.  I've got to go.’  A short time later, a person who the applicant knew arrived.  The applicant asked her for a lift and tried to get into her car.  The applicant ran away.  Those facts underpin Charge 4, fail to render assistance.

1. The applicant went to his brother‑in‑law’s house who took him to his mother's place.  They took the applicant to the police station at 12.45 am on 5 February 2011.  The applicant was breath tested at the police station.  Taking into account those readings, the applicant was said to have a blood alcohol concentration of between .120 and .147 at the time of the accident.  The applicant pleaded guilty on the basis of the reading being at the lowest end of that range.

1. Collision reconstruction evidence put the applicant's speed at 117 kilometres per hour at the time of the crash.  The car was not roadworthy due to insufficient tread on the tyres but no mechanical fault was found that could have caused the accident.  The collision took place in a 60 kilometre per hour speed zone.

1. Finally, it is important to note that the victim impact statements from the parents of the deceased man were produced during the plea.  Ms Wilson read her statement and the statement of her father was read to the Court by the prosecutor.

The appeal

1. The applicant submits that the non‑parole period of six years is manifestly excessive in the context of the total effective sentence of seven years.  The non‑parole period equates to 85 per cent of the head sentence.  Such a sentence is argued to inadequately reflect the applicant’s prospects of rehabilitation, taking into account that a non-parole period is, in part, designed to provide incentive for such rehabilitation.[1]  The submission that the applicant's prospects for rehabilitation are positive is based on the absence of prior convictions for at least ten years, the absence of any subsequent offending and the early plea of guilty.  The plea of guilty was entered at the committal hearing. 

   [1]           Kumova v The Queen [2012] VSCA 212.

1. Other relevant findings the sentencing judge made included the applicant had a deep and genuine remorse for causing the death of Mr Wilson.  The applicant had a good work ethic, was in a longstanding relationship and was the father of five children. 

1. The judge also identified that the applicant was suffering from impaired mental health at the time of the offending, justifying a reduction in moral culpability and moderation of specific deterrence.  The applicant submitted that in those circumstances there should have been a moderation for general deterrence which did not occur.  He also submitted that the judge should have concluded and taken into account that imprisonment would weigh more heavily on the applicant than a person in normal health.

1. As I noted at the commencement, the respondent conceded that the non‑parole period is manifestly excessive.  The respondent recognised that in cases with a head sentence under ten years, the ratio between the head sentence and the non‑parole period is commonly between 60 and 75 per cent

1. In Kumova v The Queen,[2] in describing the principles that apply to the fixing of a non-parole period, Redlich and Osborn JJA said:

Like the head sentence, determination of the non-parole period involves the application of well settled principles and practices to the circumstances of the case. All factors are taken into account, first in determining the head sentence and then in fixing the non-parole period. The factors may be differently weighted at each stage of the exercise because there are different purposes behind each function.  In fixing the proportion of the head sentence to be given to the minimum sentence there are sentencing principles in operation which, together with the individual circumstances of the case will determine the proportion which the non-parole period must bear to the head sentence.  First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve.  Secondly, punishment is mitigated in favour of the prisoner’s rehabilitation.  The benefit of the minimum term is for the purpose of the offender’s rehabilitation.  Thirdly, in fixing the minimum term, the interests of the community, which imprisonment is designed to serve, must be taken into account. Those principles which inform the question of the length of the minimum period have been identified by the High Court in Power v The Queen, Deakin v The Queen, and Bugmy v The Queen. Whilst different types of offending may raise different issues these underlying principles which are to be applied in every case in fixing non-parole periods, have resulted in a usual or common range of minimum sentences, expressed as a proportion of the head sentence. Whilst there is in law no correct ratio, in the majority of cases the proportion is between 60 per cent and 75 per cent, but both longer and shorter periods are found. For higher head sentences the ratio will often be higher for the reasons Redlich JA explained in Romero v R. [3]

[2]Ibid.

[3]Ibid at [27] (citations omitted).

1. Here, the sentencing judge gave no reason for imposing a non‑parole period which constitutes 85.7 per cent of the head sentence and none are immediately evident.  To the contrary, the applicant’s prospects of rehabilitation were assessed as positive, a factor which weighs significantly in the setting of a non‑parole period.[4]  The respondent also noted that the applicant’s remorse and moderation of specific deterrence, given the findings of the applicant's mental state, would be relevant to the setting of a non‑parole period. 

   [4]See for example R v VZ (2001) 7 VR 693 at 697-8 (Callaway JA).

1. The respondent, however, took issue with some of the applicant’s submissions relating to the Verdins principles 3, 5 and 6.  The respondent noted that the judge’s finding that considerations of general deterrence remain prominent, was consistent with the submission made by defence counsel on the plea.  The respondent also noted that the learned sentencing judge referred to the applicant still being burdened with depression and post-traumatic stress disorder but that the evidence concerning the impact of this on his incarceration was tenuous and speculative.

Analysis

1. I am satisfied that the respondent’s concession that the non‑parole period is manifestly excessive is a concession properly made.  The sentencing judge made several favourable findings about the applicant to which I have already referred and which were to be balanced against the seriousness of the offending in all the circumstances of the case.  Culpable drive is a serious offence warranting significant punishment, as his Honour acknowledged in his reasons for sentence.  However, in the circumstances, including where the offending was not preceded by any history of similar offending, in my opinion, the applicant’s prospects of rehabilitation meant that a non‑parole period of six years was outside the range open to his Honour, given the head sentence he had determined to impose.

1. As to the submissions made by the applicant and respondent relating to the mental state of the applicant, there was an expert report before the sentencing judge which identified several influencing factors.  The author of the report did not give evidence.  The factors identified included the residual effects of adolescent ADHD and retention of some symptoms which would have been a contributing factor to the offending.  The level of that contribution was imprecise.  There was also evidence before the sentencing judge of depression and post-traumatic stress disorder. 

1. The ADHD condition was relied upon in support of the application of the principles in R v Verdins[5] in connection with the reduction of moral culpability and moderation of general and specific deterrence.  Coupled with post-traumatic stress disorder and depression, it was also relied upon in support of the conclusion that his sentence would weigh more heavily on him than a person in normal health and have an adverse effect on his condition.  The sentencing judge concluded that the applicant’s moral culpability was reduced by his diagnosed conditions and that specific deterrence should be moderated.  However, he concluded that general deterrence remained ‘prominent’.  It is tolerably clear that the judge did not

moderate general deterrence because it could not be said that the nature and severity of the symptoms required it.  Counsel for the applicant had not submitted otherwise except to say that ‘some moderation can be given’.  His Honour appeared to conclude that the applicant’s sentence would be more difficult because he was ‘burdened with depression and post traumatic stress disorder’.  These conclusions are all open to the reached.  The fundamental problem was that the non‑parole period his Honour fixed in no way reflected them.  His Honour gave no reasons for the fixing of the non‑parole period of six years and given its proportion to the head sentence, such a sentence was unusual.

[5](2007) 16 VR 269.

Conclusion

1. Therefore in my opinion, given the circumstances and the concession made by the respondent, the sentencing discretion is reopened. I would allow the appeal. I would confirm each of the sentences originally imposed on charges 1‑4. I would likewise confirm the orders for cumulation and the total effective sentence of seven years’ imprisonment. I would fix a period to be served before he became eligible for release on parole at five years. I would also confirm the other orders for licence cancellation, disqualification for six years and the declaration pursuant to s 89(1)(d) of the Sentencing Act1991 that the applicant was under the influence of alcohol at the time the offence was committed. 

WEINBERG JA:

1. I agree. 

WHELAN JA:

1. I also agree.

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