Tokay v The Queen
[2014] VSCA 172
•1 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0060
| BARIS TOKAY | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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JUDGE: | REDLICH JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 16 July 2014 |
DATE OF JUDGMENT: | 1 August 2014 |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 172 |
JUDGMENT APPEALED FROM: | [2014] VCC 169 (13 March 2014) |
DETERMINED ON THE PAPERS
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CRIMINAL LAW – Sentence – Dangerous driving causing serious injury contrary to Crimes Act 1958 (Vic) s 319(1A) – Manifest excess – Application of Verdins principle 5 – Reliability of psychological material tendered on plea – Applicant ‘moderately deceptive’ according to Paulhus Deception Scales – O’Connor v The Queen [2014] VSCA 108, R v Zander [2009] VSCA 10 applied – Applicant’s driving history – Whether reduction in mitigatory effect of youth and prospects of rehabilitation – Error not material – Failure to stop contrary to Road Safety Act 1986 (Vic) s 61(3) – Objective seriousness of failure to stop informed by a reasonable person’s perception of the extent of the injuries caused – Applicant saw motorcyclist thrown from his motorcycle and land in the road – Not reasonably arguable that a sentence of 30 months’ imprisonment manifestly excessive – Wassef v The Queen [2011] VSCA 30, R v Harding (2008) 50 MVR 413 cited – Leave to appeal refused.
| NO APPEARANCES BY LEAVE OF THE COURT | Counsel | Solicitors |
| For the Applicant | Slink & Keating Solicitors | |
| For the Crown | Mr C Hyland Solicitor for Public Prosecutions |
REDLICH JA:
The applicant seeks leave to appeal against his sentences on one count of dangerous driving causing serious injury,[1] and one count of failing to stop and render assistance.[2] Following a plea of guilty, the applicant was sentenced to two years’ imprisonment on the dangerous driving charge, and 30 months’ imprisonment on the fail to stop charge, with eight months of the former cumulated on the latter. The total effective sentence was therefore three years, two months’ imprisonment. A non-parole period of two years was fixed.
[1]Contrary to s 319(1A) of the Crimes Act 1958 (Vic).
[2]Contrary to s 61(3) of the Road Safety Act 1986 (Vic).
The applicant’s grounds of appeal are, in brief, that the head sentence and non-parole period are manifestly excessive; that the sentencing judge erred in finding that principle 5 of Verdins was not enlivened or applicable; and that the sentencing judge gave inordinate weight to the applicant’s driving history.
Factual background
On Friday 30 November 2012 at around 9:50 pm, the victim was riding his motorcycle in a westerly direction along the Princes Highway in Dandenong, approaching the intersection with the South Gippsland Highway. The applicant was driving his car in a northerly direction along the South Gippsland Highway, approaching the Princes Highway intersection.
The applicant approached the intersection intending to turn right as the traffic signals were changing from green to red. The collision reconstruction prepared by police indicated that when the applicant’s vehicle entered the intersection, the lights applicable to it had been red for a minimum of two seconds.
The collision occurred within the intersection, when the applicant’s vehicle turned across the path of the victim’s motorcycle as it entered the intersection. The victim was thrown over the back of the applicant’s car, and landed on the road. The applicant hesitated at the scene before driving away. The victim received serious injuries in the collision and was transported to the Alfred Hospital for treatment.
At the time of the collision the road was dry, the weather was fine and traffic was light. An inspection by police indicated that there was no mechanical fault in the applicant’s car which would have caused or contributed to the collision. Nor was any fault found with the traffic control signals.
The applicant was arrested on 2 December 2012 and took part in a record of interview. He acknowledged that he was the driver of the vehicle at the time of the collision, and said that he had left the scene because he was scared and panicked. He denied the use of alcohol, medication or illicit drugs prior to the incident. He claimed that he had been facing a green traffic light as he entered the intersection, and admitted that he knew he ought to stop at the scene of any collision in which he was involved.
When sentencing the applicant, the sentencing judge made reference to the applicant’s driving history, which shall be examined in more detail below. She took into account the applicant’s plea of guilty and accepted that it, along with his acknowledgement of the injury caused to the victim, reflected some remorse for the offending, but noted that she had concerns about the genuineness of his remorse because of answers given in the record of interview and in subsequent discussions with a psychologist and a neuropsychologist. Her Honour noted the applicant’s youth – he was 22 at the time of the offending and 24 at the time of sentence – but stressed that although this was relevant to mitigation, it was tempered by a degree by the prior admitted matters relevant to the applicant’s driving history.[3] She stated also that she had ‘real concerns’ about the applicant’s prospects of rehabilitation,[4] due to his driving history. Although her Honour accepted that the psychologist’s assessment of the applicant as having a number of psychological conditions, and the neuropsychologist’s assessment that he suffered from a moderate cognitive impairment, were relevant as part of general sentencing principles in that they meant the applicant may have found his time in custody more difficult than another person without those conditions, she rejected the submission that principle 5 of Verdins applied.[5]
[3]DPP v Tokay [2014] VCC 169 (13 March 2014) (‘Reasons’) [82].
[4]Reasons, [110].
[5]Reasons, [77]. See R v Verdins (2007) 16 VR 269, 276 [32]. According to principle 5, impaired mental functioning is relevant to sentencing in that the existence of the impairment at the date of sentencing may mean that a given sentence will weigh more heavily on an offender than on a person of normal health.
Ground 2 – Enlivening of principle 5 of Verdins
It is convenient to deal with this ground, and ground 3, before ground 1, which relates to manifest excess and encompasses much of the same material.
The applicant submits that, in light of the finding of the neuropsychologist that the applicant suffers from a moderate cognitive impairment, and the psychologist’s finding that the applicant suffers from dysthmic disorder,[6] generalized anxiety disorder and schizoid personality disorder, it is self-evident that imprisonment would weigh more heavily on the applicant than on a person of normal health.
[6]A type of depression.
This ground must be considered in the context of the course followed on the plea. Counsel for the applicant had originally submitted that principles 3, 4 and 5 of Verdins were applicable. However, reliance upon principles 3 and 4 was subsequently abandoned. Her Honour’s unwillingness to sentence the applicant on the basis of principle 5 of Verdins was made plain during discussion with counsel on the plea. It stemmed from the fact that the report material contained very little direct information about whether the applicant’s mental condition would in fact render time spent in custody more onerous – a fact conceded by counsel for the applicant – and also from the fact that her Honour had legitimate concerns about the reliability of the psychologist’s and neuropsychologist’s reports.[7] It appeared that the authors of the reports had not had access to the record of police interview in which the applicant gave a very different account of the circumstances preceding the offending, the offending itself, and events subsequent, than that which he presented to the experts. The inconsistencies extended to the applicant’s descriptions of his general mental health, and whether or not he was taking anti-depressant medication.[8] Her Honour was also influenced by the opinion of the psychologist that the applicant was ‘moderately deceptive’[9] according to the Paulhus Deception Scale.
[7]Reasons, [52].
[8]Ibid [61].
[9]Ibid [51]–[52].
As was recently emphasized by this Court in O’Connor v The Queen,[10] the application of the Verdins principles must rest upon specific expert evidence regarding the nature of the impairment and its past, present and future impact upon the offender.[11] Further, no Verdins argument can be maintained unless it rests upon a sufficient evidentiary foundation.[12] As stated by Dodds-Streeton J in R v Zander:[13]
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 a mental disorder and the offending and other relevant matters.
[10][2014] VSCA 108.
[11]Ibid [65] (Maxwell P).
[12]Ibid [64].
[13][2009] VSCA 10 [29].
It is not sufficient to submit, as the applicant now does, that the experts’ findings as to the applicant’s mental state render the application of Verdins principle 5 ‘self-evident’. When questioned by her Honour at the plea about whether the applicant’s cognitive impairment would make time served more difficult, counsel for the applicant submitted only that it would do so ‘in a limited way’, without providing further argument. Her Honour felt, quite rightly, that the evidence before her was not sufficient to allow her to be satisfied to the relevant standard that the applicant’s time in prison would be rendered more onerous due to his mental condition. Her Honour made it clear during the plea that she had reservations about the factual basis of the opinion evidence relating to mental impairment, and counsel for the applicant was given ample opportunity to call further evidence in support of the Verdins argument. Counsel did not do so. Given the lack of reliable evidentiary material and argument supporting the Verdins submissions, it is not reasonably arguable that her Honour erred in refusing to apply Verdins principle 5, and in choosing instead to take the applicant’s mental impairment into account in a more generalised way as part of the application of general sentencing principles.
Ground 3 – Inordinate weight given to the applicant’s previous driving history
Her Honour summarized the applicant’s relevant previous driving history as follows:
You have … admitted a number of prior court appearances involving driving offences between 31 July 2008 and 19 April 2010. They involved a breach of permit conditions, which I was told specifically referred to you not displaying ‘L’ or ‘P’ plates. At the time of this collision you were a probationary driver. It also came to light during the course of the plea hearing that in addition to the prior matters attached to the indictment, you also admitted you had on five occasions, whilst driving a motor vehicle [license plate number], incurred infringement notices for exceeding the speed limit, ranging from less than 10 kilometres per hour to 14 kilometres per hour over the applicable limit.[14]
A number of other driving-related matters were still pending at the date of sentence, but were disregarded for sentencing purposes.[15] When sentencing the applicant, her Honour referred to his driving history as ‘very concerning’ and ‘very troubling for someone so young’.[16] As stated above, her Honour noted that the mitigating weight of the applicant’s youth was affected by his driving history, as was her assessment of his prospects of rehabilitation and his potential danger to the community.
[14]Reasons, [21].
[15]Ibid [24].
[16]Ibid [17].
The applicant submits that her Honour characterized the applicant’s driving history more seriously than was justified, and that she gave it inordinate weight when considering the issues of rehabilitation and specific deterrence. It is submitted that the applicant’s driving history was limited, in that all speeding infringements were for speeding at less than 15 kilometres per hour; the infringements did not require court appearances; and there was no other significant driving history alleged against the applicant whatsoever. The applicant has no other criminal history.
In reply, the respondent submits that the sentencing judge’s characterization of the applicant’s previous driving history was correct, and that she was right to note that it enlivened both specific deterrence and protection of the community as a relevant sentencing consideration.[17]
[17]Ibid [115].
An offender’s poor driving record is an important sentencing consideration, going to the issues of the offender’s moral culpability, their prospects of rehabilitation, the weight to be given to specific deterrence, the protection of the community and denunciation.[18] Her Honour was right to be concerned that, with so short a driving history, the applicant had already demonstrated a worrisome disregard for speed limits. However, the applicant’s driving history was not such as would warrant the diminution to any significant extent of the mitigatory weight otherwise to be attributed to his youth or his prospects of rehabilitation.
[18]R v Scholes [1999] 1 VR 337.
Ground 1 – Manifest excess
The applicant submits that both the head sentence and the non-parole period are manifestly excessive, having regard to the early plea of guilty, with its reflection of the applicant’s remorse; the applicant’s prospects of rehabilitation, his relative youth and relative lack of exposure to the criminal justice system; the fact that this represented the first time that the applicant had been placed in custody; the ‘non-aggravating’ features of the offending, including the lack of drugs or alcohol, the lack of a mechanical fault contributing to or causing the collision, the fact that the applicant was licensed, and the fact that he did not alter his vehicle after the collision to avoid detection; and the applicant’s mental health issues, as enumerated above, which, it is submitted, enliven principles 5 and 6 of Verdins.
I note at the outset that counsel for the applicant on the plea did not rely upon principle 6 of Verdins. As such, it cannot now be agitated on appeal.[19] As regards principle 5, for the reasons I enunciate in relation to Ground 2, I reject the contention that her Honour erred in not applying it for the purposes of a reduction in sentence.
[19]Romero v The Queen (2011) 32 VR 486, 489 [11]; Tran v The Queen (2012) 35 VR 484, 489 [14].
The maximum penalties for dangerous driving causing serious injury and failing to stop and render assistance are five years’ and ten years’ imprisonment respectively. In respect of the latter charge, her Honour noted in her sentencing remarks that the maximum penalty had been increased fivefold by the legislature in 2005, reflecting serious community concerns about such behaviour.[20] This Court’s decision in Wassef v The Queen[21] addressed the legislative change. In that case, I stated as follows:
Drivers who, in breach of their duty, depart the scene of an accident in circumstances where it is likely to be inferred that they did so to avoid the consequence of unlawful conduct, cannot expect that the courts will give weight to exculpatory explanations for why they have done so which are proffered after the event. They must expect the imposition of substantial terms of imprisonment.[22]
[20]Reasons, [115].
[21][2011] VSCA 30.
[22]Ibid [30]. In Wassef, the applicant was sentenced to three years and six months’ imprisonment for failing to stop. The appeal against sentence was dismissed.
This was a serious example of failure to stop. Although the applicant did not attempt to evade detection by altering his vehicle after the collision, he cannot make much of the absence of any suggestion that drugs or alcohol were involved in the offending. His departure from the scene meant that there was no evidence from any independent witness as to his state at the time of the accident. The applicant distanced himself from police and did not report the collision, despite using the internet to find out details about it.[23]
[23]Reasons, [88].
The applicant was aware that the victim had been injured, in all likelihood seriously, having seen him being thrown from his motorcycle and landing in the road. In R v Harding,[24] to which her Honour also referred in her sentencing remarks, his Honour Justice Lasry stated that:
The object of the section is to force drivers to stop when particular events occur. If the particular event, as in this case, is a serious injury to a pedestrian, then the extent of the injuries is relevant to assessing the seriousness of the offence and the extent to which a failure to stop represents a failure to properly discharge the obligations of drivers in such a situation.[25]
[24](2008) 50 MVR 413.
[25]Ibid 418.
By their very nature, collisions between motor vehicles and pedestrians are likely to cause serious injuries with lasting consequences.[26] The objective seriousness of the offence must be informed by what a reasonable driver in the position of the offender would have apprehended were the likely consequences of the accident. The applicant in this case felt a forceful impact against his vehicle, and saw somebody ‘fly over’. Any reasonable person in his position would have realized that the injuries sustained by the victim were likely to be serious, as indeed they were. His failure to stop therefore represents a significant failure to discharge his obligations to his fellow road-users. It was a serious example of failing to stop after an accident. The sentence imposed on the fail to stop charge cannot be regarded as excessive in such circumstances.
[26]King v The Queen (2012) 245 CLR 588, 622 [87].
The sentence imposed for the dangerous driving charge represents forty per cent of the maximum penalty prescribed by Parliament for that offence. The High Court, in King v The Queen,[27] observed that driving will be considered ‘dangerous’ for the purposes of the section if it involves a serious breach of the proper conduct of a vehicle upon the roadway, such that it is potentially dangerous to those who may be upon or in the vicinity of the roadway.[28] Obviously some breaches will be more serious than others. In this case, the applicant decided to accelerate through a light which had just turned red in order to reach his destination faster. His culpability is significant because he knew or should have known that vehicles were likely to enter the intersection with a green light and that to proceed through the red light at speed was fraught with danger.
[27](2012) 245 CLR 588.
[28]Ibid.
Allowing for the possibility that the sentencing judge gave inordinate weight to the applicant’s previous driving history, and so may have diminished the mitigatory effect of the applicant’s youth or prospects for rehabilitation, I do not regard it as reasonably arguable that the head sentence or non parole period are manifestly excessive or that there is a reasonable prospect that the Court of Appeal would impose less severe individual sentences or reduce the total effective sentence.[29]
[29]Criminal Procedure Act 2009 (Vic) s 280(1).
The application for leave to appeal against sentence must be refused.
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