Veerman v The Queen
[2012] VSCA 194
•24 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2012 0024
| DANIEL VEERMAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG, HARPER JJA and T FORREST AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 August 2012 |
| DATE OF JUDGMENT | 24 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 194 |
| JUDGMENT APPEALED FROM | DPP v Veerman (Unreported, County Court of Victoria, Judge Hampel, 16 December 2011) |
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CRIMINAL LAW — Appeal against sentence — Appellant pleaded guilty to multiple charges arising from fatal ‘hit and run’ incident and subsequent conduct — Total effective sentence of five years and three months’ imprisonment with non-parole period of three years — Sentences of three years and six months’ imprisonment imposed on both charge 1 (dangerous driving causing death) and charge 2 (failure to render assistance) — 12 months’ of sentence imposed on charge 2 ordered to be served cumulatively upon sentence imposed on count 1 — Whether sentence imposed on charge 2 manifestly excessive — Serious example of failing to render assistance — Principles in R v Verdins (2009) 16 VR 269 applicable to charge 2 — Sentence imposed on that charge outside the range — No error in degree of cumulation ordered — Appeal allowed — Appellant resentenced to same total effective sentence and non-parole period — No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Robert Stary Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
On 12 December 2011, the appellant, Daniel Veerman, then aged 33, pleaded guilty in the County Court at Melbourne to an indictment containing one charge of dangerous driving causing death, one charge of failing to render assistance after an accident, one charge of arson, one charge of attempted theft, and three charges of theft. He also pleaded guilty to one summary charge of stating a false name when requested.
He was sentenced on 16 December 2011 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Dangerous driving causing death 10 years
[Crimes Act 1958, s 319]3 years and 6 months Base 2 Failing to render assistance after an accident 10 years [Road Safety Act 1986, s 61(1)(b)] 3 years and 6 months 1 year 3 Arson 10 years [Crimes Act 1958, s 197(1), (6)] 1 year 3 months 4 Attempted theft 5 years [Crimes Act 1958, ss 321M, 74] 9 months 2 months 5 Theft 10 years [Crimes Act 1958, s 74] 1 year 4 months 6 Theft 10 years [Crimes Act 1958, s 74] Fine of $100 N/A 7 Theft 10 years [Crimes Act 1958, s 74] Fine of $100 N/A Summary State false name when requested 5 penalty units [Crimes Act 1958, s 456AA(3) Fine of $100 N/A Total Effective Sentence: 5 years and 3 months Non-Parole Period: 3 years Pre-sentence Detention Declared: 281 days 6AAA Statement: TES 7 years 9 months; NPP 5 years Circumstances surrounding the offending
The offending which gave rise to the individual sentences set out above arose
out of a fatal collision, on 8 March 2011, between the appellant and a cyclist. On that day, the appellant was driving in a westerly direction along Mount Dandenong Road in Ringwood East. At a point where the road narrowed from three lanes into two, the appellant failed to merge, and instead drove his vehicle along a dedicated bicycle lane. He struck a cyclist, Kieran Bailey, from behind. Mr Bailey was thrown from his bicycle and landed heavily on the road, about 40 metres away from the point of impact. Despite being in a 70 km per hour zone, the appellant was driving at about 80 km per hour when his vehicle struck Mr Bailey (charge 1 – dangerous driving causing death).
The appellant pulled over after the collision and walked towards the victim who was lying on the road. However, within moments he returned to his car and drove away without rendering assistance, and without contacting emergency services (charge 2 – failing to render assistance).
Mr Bailey suffered severe head injuries and spinal fractures. He died from those injuries two days later.
After leaving the scene of the collision, the appellant drove to a hotel some 600 metres further along the road. He parked his vehicle in the rear car park of the hotel and set it alight by spreading accelerant inside the car and igniting it. This caused damage amounting to $1,780 to a car that was parked nearby (charge 3 - arson).
Very early on the following morning, police observed the appellant walking in the direction of Sunbury in the vicinity of Tullamarine Airport. They gave him a lift to Sunbury. His appearance and manner gave them no cause for concern. He provided the police with a false name at that time.
Shortly afterwards, the appellant approached a man who was withdrawing money from an ATM in Sunbury. He demanded the man’s money and his car. The victim refused and returned to his car and drove away (charge 4 – attempted theft).
Fifteen minutes later, the appellant stole a newspaper delivery van which had been left momentarily unattended. The owner of that van saw the appellant approaching, armed with what he believed to be a knife. He made no attempt to stop the appellant from stealing the van (charge 5 –theft).
The appellant drove the stolen van to a service station in Hamilton. There, he filled the petrol tank with $64.48 worth of petrol. He drove off without paying (charge 6 - theft).
Approximately three hours later, the appellant drove into a service station in Colac West. There, he stole a packet of cigarettes valued at $13.55 (charge 7 - theft).
About 45 minutes later, police intercepted the appellant in the stolen van. He gave them a different false name to the one he had earlier given. This gave rise to the summary charge (state false name).
Sentencing remarks
The sentencing judge noted that the appellant was highly educated, having completed a Bachelor’s Degree in Environmental Science, and having graduated with distinction. He had been in a stable relationship with a partner with whom he had two children.
Her Honour observed that although the appellant had been seemingly successful, and had had a good work history for much of his adult life, things had gone awry in recent years. From about the age of 16, he had used marijuana and other drugs, including amphetamines. Following his graduation and his inability to find work in environmental science, the appellant’s drug use had led to serious difficulties, including the break-up of his relationship.
In 2010, the appellant had twice been admitted to hospital for psychiatric care. He was initially diagnosed with schizophrenia, as well as depression linked to cannabis abuse. He had been an inpatient for about a week, and had then been discharged. However, he had been re-admitted about five months later, following a siege at his mother’s house. Following that incident, he was diagnosed with drug-induced psychosis. He was prescribed antipsychotic medication. Upon discharge, he was referred to community management. However, this was not effectively followed up. He continued to abuse illicit drugs, and did not take his prescribed medication.
The sentencing judge referred to various reports prepared by Dr Adam Deacon, a consultant psychiatrist. Dr Deacon had noted that the appellant’s mother reported a decline in her son’s mental state in the weeks immediately leading up to the offending. However, in his opinion, there was nothing to suggest that the appellant was not acting in a purposive way. Nor was there anything in his behaviour to justify admitting him as an in-patient.
After the appellant was arrested, he was assessed as unfit to be interviewed. He was later remanded into an acute assessment unit in Port Phillip Prison. When Dr Deacon first saw him in June 2011, he considered him to be in a psychotic state.
The appellant was later transferred to Thomas Embling Hospital where a provisional diagnosis of affective psychosis was made. The appellant was subsequently formally diagnosed as suffering major depression associated with psychotic features. After treatment, he recovered sufficiently to be transferred back to Port Phillip Prison. That took place shortly before his plea hearing.
When interviewed by Dr Deacon on a second occasion in August 2011, the appellant claimed to have no memory whatever of the offences. He admitted, however, to using copious quantities of any drugs he could get.
In his third report, prepared in December 2011, Dr Deacon said that, in his opinion, the appellant had experienced a ‘marked deterioration in his mental health’ over a period of approximately two to three years prior to the offending. He accepted that the appellant was, nonetheless, ‘making deliberate decisions’, though his judgement ‘may have been grossly impaired’. He regarded the appellant as having a very severe depressive and psychotic illness, compounded by illicit drug use. He did not regard the appellant as having demonstrated ‘ingrained anti-social tendencies’.
On the basis of Dr Deacon’s evidence, and other material tendered on the plea, the sentencing judge was not satisfied that a causal connection had been established between the appellant’s mental illness, and the circumstances of his driving. Accordingly, she did not consider his moral culpability to have been reduced, at least in relation to the charge of dangerous driving causing death.
However, her Honour did accept that the appellant was likely to have been mentally unwell at the time of the offending, and that his capacity to make reasoned decisions after his vehicle had collided with the victim had been compromised. She qualified that conclusion by noting that a contributing factor had been his self-induced drug abuse which, of course, could not be treated as a mitigating factor. She also found that, by reason of the appellant’s mental state, imprisonment would be additionally burdensome for him. She said that she would accordingly reduce the sentence that might otherwise have been imposed.
Finally, her Honour referred specifically to the appellant’s supportive family, his plea of guilty and his lack of prior convictions. He had only twice before been before a court, once for possessing an ornamental sword, and once on a charge of speeding, neither of which assumed any great significance in the present case.
The grant of leave
The appellant was granted leave to appeal by Neave JA. Initially, the sole ground upon which he relied was one of manifest excess, but confined to charges 3, 4 and 5, and the orders for cumulation made in respect of those charges.
When her Honour considered the written case filed in support of leave, she was concerned that no specific complaint had been made regarding the sentence imposed on charge 2. She ordered an oral hearing in the matter. Following that hearing, she gave leave to amend the proposed grounds of appeal to include a claim that the sentence imposed on charge 2 was itself manifestly excessive.
In the end, Neave JA concluded that it was not reasonably arguable that the sentences imposed on charges 3, 4 and 5, or the very modest orders for cumulation made in respect of these offences, were manifestly excessive.
However, her Honour considered that, having regard to the appellant’s mental illness, and the evidence that his judgment may well have been impaired when he failed to assist Mr Bailey after the accident, it was reasonably arguable that the sentence of three years and six months imposed on charge 2, and the order that 12 months of that sentence be cumulated upon the sentence on charge 1, were excessive.
The appellant’s submissions
In support of his submission that the sentence that he received for having failed to render assistance was manifestly excessive, the appellant pointed to the fact that there were a number of mitigating factors present in this case. He mentioned specifically:
·his plea of guilty, proffered at the first possible opportunity;
·his good work record;
·his having completed a university degree in marine biology;
·his long history of poor mental health;
·the sentencing judge’s finding that at least two of the key principles in Verdins applied to charges 2 to 7;
·his long term drug addition;
·his significant family support;
·the fact that this was his first term of imprisonment; and
·his lack of relevant prior convictions.
The appellant next referred to Wassef v The Queen[1] which, he submitted, showed that the sentence imposed on charge 2 equalled the highest sentence ever imposed in this State for a failure to stop after an accident.
[1][2011] VSCA 30 (‘Wassef’).
In that case, Redlich JA, with whom Maxwell P agreed, said:
26.The maximum penalty for failing to stop after an accident is 10 years’ imprisonment, the penalty having been increased on 1 June 2005 from two years’ imprisonment. In the Second Reading Speech the Minister for Transport in introducing the Bill to increase the penalty 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.
27.It was not in issue on the plea or before this Court that, given the need for general deterrence, a period of immediate imprisonment ought to be imposed. However, it was said that as the offending was not aggravated ‘in the sense that leaving the scene of the accident otherwise caused the victim to suffer further injury or otherwise not receive medical attention which presumably was administered relatively soon after the accident,’ three years and six months’ imprisonment for the offence of failing to stop after an accident was too high. That submission cannot be sustained.
28.A sentence a little over one third of the maximum sentence may be within range without the presence of aggravating features. It was not necessary that the victim have suffered injuries directly attributable to the failure to stop before a sentence of this order could be made. As was stated by Lasry AJA in R v Harding:
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.
29.Attention was drawn to the structure of the sentencing on the different counts as suggestive of error. In the past, where an offender has been charged with causing the serious injury or death of a person by his or her driving and with failing to stop after the accident, it has usually been the count concerned with causing the injury that has attracted the heavier (ie base) sentence. In recent times, offences of failing to stop after an accident which have come before this court have had attracted penalties ranging from 20 months’ imprisonment, 14 months of which was suspended for two years, to two years’ imprisonment. In Harding, where a term of two years had been imposed, the driving itself was not said to be criminal, so that the post-accident consequences of the injuries were not relevant for the purposes of sentencing.
30.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.[2]
[2]Ibid [26]-[30] (citations omitted).
Having made this point, the appellant went on to submit, somewhat boldly it might be thought, that his conduct should not be viewed as a serious example of this offence. He argued that the objective gravity of his offending was lessened by the fact that he had, initially, stopped his vehicle, got out and approached the cyclist. He further submitted that his offending should be viewed less seriously because he did not leave the cyclist alone and unattended on the road, there being passers-by present. He submitted that his actions in leaving the scene had not, for that reason, contributed in any way to the tragic death of the deceased. Unlike some other examples of this offence, there had been no delay occasioned in obtaining medical assistance.
In that regard, the appellant sought to distinguish his case from DPP v Josefski.[3] There, the offence was aggravated by the fact that the victim was struck in the middle of the night with little likelihood of immediate assistance being available when the offender left the scene.
[3](2005) 13 VR 85.
The appellant further submitted that his moral culpability in relation to charge 2 was significantly reduced because of his mental illness at the time he left the scene. He added that the sentence imposed on charge 2 was significantly greater than that put forward by the Crown when it descended to specifics as part of putting forward a MacNeil-Brown[4] submission. The prosecutor told her Honour that, in the Crown’s submission, a maximum of two years and six months would be appropriate for this charge.
[4]R v MacNeil-Brown (2008) 20 VR 677.
Finally, the appellant submitted that the degree of cumulation ordered was excessive. He submitted that significant or substantial concurrency would have been appropriate, rather than adding 12 months to the base sentence imposed in relation to charge 1.
Respondent’s submissions
In its written submissions, the Crown contended that the sentence imposed on charge 2 was within range, and that no error had been shown in the amount of cumulation ordered on that charge. I should indicate that during the course of oral argument, Mr Kissane, who appeared on behalf of the Crown, very fairly acknowledged that the sentence imposed on charge 2 appeared to be beyond what was reasonably appropriate in the circumstances.
In the written submissions it was submitted that the sentencing judge had referred to all of the matters put in mitigation in her sentencing remarks, and that she had plainly taken them into account. She had displayed evident sympathy for the appellant’s mental health problems. However, she had concluded that this was serious criminality, warranting a substantial sentence. The appellant had been well aware that the victim was seriously injured, but deliberately chose to flee the scene in order to avoid detection. Implicitly at least, it could be inferred that the fact that this was a hit and run incident must have added to the anguish of the victim’s family.
The Crown further submitted that the decision by Parliament, on 1 June 2005, to increase the maximum penalty for this offence from two years’ imprisonment to 10 years’ imprisonment sent a clear and unmistakeable message as to the seriousness with which conduct of this kind should be viewed. The sentence in this case was the same as that imposed in Wassef. There, this Court had made plain that a sentence of a little over one third of the maximum could fall within the range even without any aggravating features being present.
Finally, it was submitted that the figure of two years and six months’ imprisonment as the maximum for this offending, put forward by the prosecutor on the plea, had in no way been binding upon the sentencing judge. That latter submission is, of course, plainly correct.[5]
[5]Campisi v The Queen [2010] VSCA 183, [20] (Maxwell P, Bongiorno JA and Beach AJA).
With regard to the appellant’s contention as to excessive cumulation, the Crown submitted that no error of that kind had been demonstrated. The failure to render assistance was separate and distinct from the offence of dangerous driving, even though it followed immediately afterwards, and was consequential upon that offence.
The Crown also relied upon this Court’s observation in R v Hogan[6] that:
The discretion to order cumulation between counts is a very broad one. It should not be unduly circumscribed. Reasonable minds will differ as to whether cumulation should be ordered and if so in what amount.
[6][2008] VSCA 279, [29] (Maxwell P, Redlich JA and Robson AJA).
Conclusion
In my respectful opinion, the sentence imposed on charge 2 was manifestly excessive. It fell clearly outside the range reasonably open to the sentencing judge for this particular offending.
In arriving at this conclusion, I do not accept the appellant’s submission that this was not a serious example of failing to render assistance. Clearly, in my view, it was. However, when one gives proper weight to the principles in R v Verdins,[7] (that her Honour accepted were applicable in relation to this charge), and couples that with the various other mitigating factors that were present, a sentence of three years and six months’ imprisonment was outside the range.
[7](2007) 16 VR 269.
It has often been said that the ground of manifest excess admits of little argument. It might also be said that the conclusion that a particular sentence was manifestly excessive requires little elaboration. For the reasons put forward on behalf of the appellant, with the exception of his characterisation of this offending as ‘not a serious example’ of this offence, the sentence on charge 2 should be set aside.
In my opinion, the appellant should be resentenced to two years’ imprisonment on charge 2.
The question remains, however, whether there should be any change to the 12 months’ cumulation ordered on that charge upon the base sentence fixed on charge 1. In my view, there should not. Her Honour was entirely justified in concluding that there should be some cumulation upon that base sentence, given the separate and distinct nature of the offence of failing to render assistance. An additional 12 months strikes me as being apt.
It follows that although the appeal should be allowed, and the sentence on charge 2 reduced, the total effective sentence should be maintained at five years and
three months. The same can be said of the non-parole period of three years. In my view, her Honour’s sentence was entirely appropriate. Any lesser period of incarceration would fall short of meeting the requirements of general and specific deterrence, and would fail adequately to denounce this offending.
HARPER JA:
I agree with the learned presiding judge.
T. FORREST AJA:
I also agree with the learned presiding judge.
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