Tokay v The Queen
[2014] VSCA 285
•14 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0060
| BORIS TOKAY |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
---
| JUDGES: | WEINBERG and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 14 November 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 285 |
| JUDGMENT APPEALED FROM: | DPP v Tokay [2014] VCC 169 (Judge Pullen) |
ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009
---
CRIMINAL LAW – Appeal – Sentence –Driving in a manner that is dangerous causing serious injury –Failure to stop and render assistance –Applicability of Verdins principle 5 – Impact of prison on mentally ill prisoner – Whether inordinate weight given to previous driving history – Whether head sentence and non-parole period manifestly excessive – Crimes Act 1958, s 319(1a) – Road Safety Act 1986 s 61(3) – R v Verdins (2007) 16 VR 269 – Application dismissed
---
| APPEARANCES: | Counsel | Solicitors |
| No appearances |
WEINBERG JA:
I agree with Santamaria JA.
SANTAMARIA JA:
On 13 March 2014, the applicant was sentenced in the County Court as follows:[1]
[1]DPP (Vic) v Tokay [2014] VCC 169 (‘Reasons’).
Charge Offence Maximum Sentence Cumulation 1 Driving in a manner that is dangerous causing serious injury [s 319(1A) of the Crimes Act 1958]
5 years 24 months 8 months
2 Fail to stop and render assistance [s 61(3) of the Road Safety Act 1986]
10 years 30 months Base Total Effective Sentence: 3 years 2 months’ imprisonment Non-Parole Period: 2 years Pre-sentence Detention Declared: 17 days 6AAA Statement: 5 years and 6 months’ imprisonment with a non-parole period of 4 years Proposed grounds of appeal
In his application for leave to appeal against sentence, the applicant has given notice that he proposes to seek leave on the following grounds:
1.That the head sentence and the non-parole period are manifestly excessive.
2.The sentencing judge erred in finding that principle 5 in R v Verdins (2007) 16 VR 269 was not enlivened or applicable in this case.
3.The sentencing judge gave inordinate weight to the previous driving history of the applicant. On 1 August 2014, Redlich JA refused leave to appeal against sentence. In doing so, he published extensive reasons.[2]
[2]In Ayol v The Queen [2014] VSCA 151, Weinberg JA said (at [14]): ‘I would also note that although this renewed application for leave to appeal is by way of rehearing, the carefully expressed reasons of a judge of this Court who has refused such leave will ordinarily be given considerable weight. That is not because this is an appeal from [a judge of this Court]’s decision refusing leave. Of course, it is not. It is rather that his Honour’s reasoning needs fully to be taken into account. In the event that no flaw or error in that reasoning can be discerned this Court would be slow to arrive at a different conclusion, and order that leave to appeal be granted’. See also Redlich JA at [26]. See also Booysen v The Queen [2014] VSCA 150, [9] (Redlich JA and Almond AJA).
The applicant has elected, pursuant to s 315 of the Criminal Procedure Act 2009, to have his application for leave to appeal against sentence determined by this Court.
Background to present application
On 30 November 2012, at about 9.50 pm, Aleksandar Culibrk (‘Culibrk’) was riding his black coloured 2006 Kawasaki motorcycle in a westerly direction along the Princes Highway at Dandenong. He was approaching the intersection of the South Gippsland Highway which was on his left hand side. At the same time, the applicant was driving his white coloured 1992 Toyota Soarer coupe in a northerly direction along the South Gippsland Highway and was approaching the intersection with the Princes Highway. As Culibrk approached the intersection he was faced with a red traffic signal. But as he came nearer to it, the lights changed from red to green. Approaching the intersection, the applicant proposed to enter it and turn right in an easterly direction. As he approached the intersection, the traffic signals facing him were changing from green to red. He entered the intersection against a red traffic light.
The applicant’s vehicle collided with Culibrk’s motorcycle within the intersection when the Toyota turned across the path of the motorcycle.
Culibrk was thrown over the back of the applicant’s vehicle; he landed on the road surface. He received serious injuries including nerve damage, broken bones, vascular and dental injuries. He was transported to the Alfred Hospital for treatment.
The police officer responsible for a ‘collision reconstruction’ said that when the applicant’s car ‘entered the intersection the lights applicable to it had been red for a minimum of two seconds’. Another police officer who carried out a mechanical inspection of both vehicles involved in the collision found no mechanical fault that would have caused or contributed to the collision. At the time of the collision, the road was dry, the weather fine and the traffic light. The traffic control signals were found to be operating correctly.
After the collision, the applicant hesitated at the scene. Then, he drove off in an easterly direction along the Princes Highway.
On 2 December 2012, the applicant was arrested and interviewed at Pakenham Police Station.
Principle 5 of Verdins: impact of prison on the mentally ill prisoner
In R v Verdins,[3] the Court said:
[3](2007) 16 VR 269 (‘Verdins’).
In R v Smith, King CJ identified two different ways in which ill-health might be a factor mitigating punishment:
… Generally speaking ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.
Proposition 5 from R v Tsiaras captured the first of these, as follows:
… psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
This proposition requires neither explanation nor qualification. Self-evidently, a prisoner suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health.[4]
[4]Ibid 275-276 [27]-[28] (citation omitted).
The applicant contends that the sentencing judge erred in finding that the fifth principle in Verdins was not enlivened or applicable in this case.
At the sentencing hearing, the applicant tendered a report from neuropsychologist, Dr Sami Yamin and psychologist Miriam Brookens. Dr Yamin described the applicant as suffering from ‘a moderate cognitive impariment’ and Ms Brookens described him as suffering from Dysthmic Disorder, Generalised Anxiety Disorder and Schizoid Personality Disorder. The applicant said that it was self- evident that imprisonment would weigh more heavily upon him than a person with normal health. In fact, Ms Brookens had said that the applicant ‘does not function well around others and will likely become overwhelmed and more emotionally unstable in a prison setting. It is recommended that he receive ongoing psychological support if such an outcome occurs’.
In her reasons, the sentencing judge said:
[76]Mr Reynolds initially in his written and oral submissions, indicated his intention to rely on a number of principles in R v Verdins & Ors. Initially his submissions relied upon the restatement of the Tsiaris principles 3, 4 and 5. I discussed this at some length with him, as will be revealed in the transcript. Mr Reynolds ultimately abandoned his submission in relation to principles 3 and 4, yet appeared to maintain his submission in relation to principle 5.
[77]I further discussed principle 5 with Mr Reynolds, who concluded it was ultimately a matter of the weight I could give to the reports regarding whether your condition at date of sentence would weigh more heavily upon you than any other prisoner in normal health. In particular, Mr Reynolds was relying upon the assessment by Dr Yamin you had a moderate cognitive impairment. In his report, however, in my opinion, he did not ‘link’
3that condition to ‘likely’ impact upon that condition if imprisoned. Even putting any lack of reference to any ‘link’ to one side, in my opinion on the material in both reports, they do not enliven principle 5 either, bearing in mind my concern regarding the foundations upon which the authors' conclusions are reached.[78]Having said that, I do note Ms Brookens referred to a number of psychological conditions which she considered apparent from your history, and Dr Yamin referred to you having a moderate cognitive impairment. Whilst, in my opinion the principles in Verdins are not enlivened, I can and do however, take into account, as part of general sentencing principles that you may find your time in custody more difficult than another person without those conditions. As I discussed with your counsel, however, the conclusions reached by both doctors, and in particular Ms Brookens, was based on a history from you which caused me some concern.
[79]In my opinion, the basis/facts upon which the authors of the reports reached their conclusions are to a degree in doubt.[5]
[5]Reasons [76]–[79] (citations omitted).
Close attention to the transcript of the sentencing hearing does not reveal that, finally, any close reliance was placed upon the fifth principle of Verdins. The sentencing judge directly asked whether or not the report of Dr Yamin or that of Ms Brookens addressed the issue whether the applicant’s time in custody would be more onerous because of his condition. The transcript reveals the following exchange:
Judge:Doesn’t there need to be evidence of that? Someone has to put their hand up, some expert has to say that. Does either of these two address that issue?
Counsel:No they don’t your Honour.
Judge:Well isn’t there a problem – I’m pretty sure that’s right? Isn’t that right? I think you have to have someone come along with the relevant expertise to say that this will weigh more heavily upon him, don’t I? I’m pretty sure I do. Do you know the case – am I right or wrong?
Counsel:I believe your Honour’s right.
It seems plain that the sentencing judge was referring to R v Zander[6] in which Dodds-Streeton JA (with whom Nettle JA agreed) said:
The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and
assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.[7]
[6][2009] VSCA 10.
[7]Ibid [29]. In that case, Nettle JA said (at [36]): ‘… where a prisoner is represented by counsel, a sentencing judge is not ordinarily required to consider any possible effects of psychological or psychiatric disability other than those expressly relied on by counsel. Generally speaking, therefore, it is ordinarily not the duty of a sentencing judge to scour evidence and other material in order to identify not so identified psychological or psychiatric disability which may go in mitigation of penalty.’
Before the sentencing judge, the applicant did not propound an argument based upon the fifth principle in Verdins. Moreover, the evidence did not support any such ground. Further, the sentencing judge did take into account as part of ‘general sentencing principles’ the fact that the applicant would find his time in prison more difficult because of his cognitive impairment.[8]
[8]Reasons [78].
I would refuse to grant leave on this ground.
Whether inordinate weight given to previous driving history of the applicant
The applicant contends that the sentencing judge characterised his previous driving history more seriously than was justified and gave inordinate weight to his previous driving history when considering the issues of rehabilitation and specific deterrence. He pointed out that, although he had been sentenced for a series of traffic offences between July 2008 and April 2010 and that he was the subject of several infringement notices that had been issued between August and September 2012, his true driving history was not that significant. In particular, the infringements for speeding were for speeds of less than 15 kilometres per hour over the limit. In her reasons, the sentencing judge said:
[110]Regarding your rehabilitation prospects, I have real concerns. Your driving history to date is troubling for someone so young. At best, I have guarded optimism in relation to your rehabilitation prospects. However, in fixing an appropriate sentence I must seek to maximise your chances of rehabilitation as they may be. You are still young and hopefully you will learn quickly.
[111]As well as matters personal to you, including your prospects for rehabilitation, I must also take into account general deterrence which is of particular importance when sentencing for offences of this nature, ie dangerous driving causing serious injury or death, the latter of course not the charge before me.
In my opinion, the sentencing judge did not give ‘inordinate weight’ to the applicant’s ‘previous driving history’. She described it as ‘troubling for someone so young’. It is difficult to disagree with that assessment. She took it into account in the context of his ‘rehabilitation prospects’. There is nothing to suggest that the sentencing judge used the applicant’s previous driving history in a manner prejudicial to his chances of rehabilitation. It is undeniable that his history made both specific and general deterrence as relevant to his sentence.
I would refuse to grant leave on this ground.
The head sentence and the non-parole period are manifestly excessive
The applicant submits that the head sentence and the non-parole period are manifestly excessive in the light of the following circumstances:
(a) The applicant’s early plea of guilty;
(b) The applicant’s remorse as reflected by his early plea of guilty;
(c)The applicant’s prospects of rehabilitation given his youth, his relative lack of exposure to the criminal justice system and the support of his family and friends;
(d)The applicant’s relative youth. The applicant was 22 years of age at the time of offending and 24 at the time of sentence;
(e)The fact that this is the first time that the applicant has been placed in custody;
(f)Features of the offending which could be regarded as non aggravating:
i.There is no suggestion the applicant was using drugs or alcohol at the time of the collision;
ii.A vehicle inspection indicated that there was no mechanical fault which could have caused or contributed to the collision;9
iii. The applicant was licensed at the time;
iv.There is no suggestion the applicant altered his vehicle after the collision to avoid detection;
(g)The circumstances that the applicant will find imprisonment more difficult than a person in normal health and that there is a serious risk of imprisonment having a significant adverse effect on the applicant’s mental health thus enlivening principles 5 and 6 respectively in Verdins case. In support of this reliance is made on the following:
i.The finding of Neuro Psychologist, Sami Yamin that the applicant has a moderate cognitive impairment;
ii.The diagnosis by Psychologist, Miriam Brookens that the applicant is suffering from three diagnosable disorders namely Dysthmic disorder, Generalised anxiety disorder and Schizoid personality disorder.
iii.The finding of Ms Brookens that the applicant does not function well around others and will likely become more emotionally unstable in a prison setting enlivens principle 6 of Verdins case that there is a serious risk of imprisonment having a significant effect on the applicant’s mental health.
iv.For completeness, regardless of whether Verdins principles 5 and 6 are enlivened the finding of moderate cognitive impairment and the diagnosis of Dysthmic disorder, Generalised anxiety disorder and Schizoid personality disorder are all relevant to the applicant’s ability to cope in prison given his fragile state.
In Romero v The Queen,[9] Redlich JA said:
In sentencing appeals, this court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivication of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.[10]
[9](2011) 32 VR 486.
[10]Ibid 489-490 [11]. See also Arthars v The Queen; Plater v The Queen [2013] VSCA 258, [17]-[19] (Redlich and Coghlan JJA and T Forrest AJA).
Principle 6 from Verdins[11] was abandoned at the sentencing hearing. It cannot now be relied upon.
[11] Verdins (2007) 16 VR 269, 276 [32]: ‘6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment’.
In R v Abbott,[12] Maxwell P said:
But the ground of manifest excess is not an occasion on which to re-argue the plea in mitigation. The ground of manifest excess will only succeed where it can be shown that the sentence was “wholly outside the range of sentencing options available” to the sentencing judge.[13]
[12](2007) 170 A Crim R 306.
[13]Ibid 309 [13] (citation omitted).
The sentences were not manifestly excessive.
As the sentencing judge noted, the maximum penalty for a contravention of s 61(3) of the Road Safety Act 1986 has increased fivefold since June 2005. The maximum is now 10 years. That maximum penalty reflects 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.[14]
[14]Nguyen v The Queen [2014] VSCA 53; Wassef v The Queen [2011] VSCA 30; Tang v The Queen [2013] VSCA 31; Miller v The Queen [2012] VSCA 265; DPP (Vic) v Josefski (2005) 13 VR 85; Pollard v The Queen [2010] VSCA 156; cf R v Mohamed [2009] VSCA 158. In R v Harding [2008] VSCA 124, Lasry AJA (with whom Ashley and Dodds-Streeton JJA agreed) quoted (at [18]) the Second Reading Speech in the Victorian Parliament, made on 5 May 2005, in support of the Bill to increase the penalty for this offence from 2 years’ to 10 years’ imprisonment. The Minister for Transport said:
The Victorian community has been rightfully concerned about recent cases where drivers have left the scene of an accident in which a person has been killed or seriously injured without rendering assistance. Failing to stop in these circumstances is a despicable and cowardly act. The Bracks government has listened to community concerns about this very serious issue, and as a result the penalties for drivers involved in an accident in which a person is killed or seriously injured who fail to stop and render assistance will be substantially increased.
The maximum penalty of 10 years jail is between the maximum penalties that apply to the offences of dangerous driving causing death or serious injury (5 years) and culpable driving causing death (20 years).
This will help to ensure that a person who suspects that he or she may be charged with one or other of these offences (for example because he or she is affected by alcohol or illegal drugs when the accident occurs) will no longer have an incentive to escape from the scene.
Lasry AJA said (at [29]):
… if, in a particular situation, a driver causes serious injury to a pedestrian and then leaves the scene of the accident contrary to s 61 of the Road Safety Act 1986 (Vic) because that person considers they are at risk of prosecution as a result of the consumption of alcohol or drugs, the attempt to avoid that risk significantly increases the culpability of the offending. So much is clear from the Second Reading Speech to which I have already referred.
The present case was a particularly serious instance of offending. The applicant failed to stop at a red light. His act was consciously dangerous. He knew that his victim had been injured, probably seriously. He fled the scene. The case for general deterrence was always strong.
When he was interviewed by the police, the applicant admitted his involvement in the incident. However, his concessions as to the nature of his involvement were grudging and his explanation for his departure from the scene was not one from which any particular concern for the welfare of his victim could be detected. The sentencing judge took into account his prospects of rehabilitation and his eventual remorse.
In the circumstances, it cannot be said the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.
I would refuse to grant leave on this ground.
- - - - -
14
9
0