Wassef v The Queen
[2011] VSCA 30
•16 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0708 | |
| YOSRY KAMEL WASSEF | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P and REDLICH JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 November 2010 |
| DATE OF JUDGMENT | 16 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 30 |
| JUDGMENT APPEALED FROM | R v Wassef [2009] VCC 870 (Judge Allen) |
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CRIMINAL LAW – Sentencing – Failure to stop after an accident – Sentence of three years and six months’ imprisonment – Increased statutory maximum – Sentence not manifestly excessive – Reckless conduct endangering a person – Dangerous driving causing serious injury – Adjustment disorder – Whether Verdins principles applied – Vague causal connection with collision – No explicit reliance on Verdins principles – Delay of three and a half years between offending and sentencing – Fresh evidence of deterioration of appellant’s health in prison due to his diabetes – Conflict in affidavit material filed by the parties as to whether deterioration due to appellant’s non-compliance with medical regime rather than prison conditions – Appeal dismissed.
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Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Valos Black & Associates |
| For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I agree with Redlich JA.
REDLICH JA:
The appellant, having pleaded guilty in the County Court to a three-count presentment, was sentenced to 18 months’ imprisonment on a count of reckless conduct endangering a person (count 1), two years’ imprisonment on a count of dangerous driving causing serious injury (count 2) and three years and six months’ imprisonment on a count of failing to stop after an accident[1] (count 3). Three months of the sentence on count 1 and nine months of the sentence on count 2 were to be served cumulatively on the sentence on count 3 and on each other, making a total effective sentence of four years and six months’ imprisonment. A non-parole period of three years’ imprisonment was fixed. He was disqualified from driving or holding a driver’s licence in Victoria for a period of four years.
[1]Contrary to s 61(3) of the Road Safety Act 1986 (Vic).
The appellant, who has been granted leave, has appealed against the individual sentences, the total effective sentence and the non-parole period.
The circumstances of the offending
On the evening of 12 January 2006 the appellant was driving in a southerly direction along Beach Road in Brighton. He was witnessed tailgating another vehicle, breaking constantly and ‘swaying’ within the lane. He was observed to cross the centre line and intrude into the path of a vehicle travelling in the opposite direction, causing the other vehicle to swerve suddenly in order to avoid a collision. The appellant’s vehicle then returned to the correct side of the road. Shortly after, the appellant’s vehicle swerved from the outside southbound lane across the inside southbound lane and into the pathway of a vehicle travelling in a northern direction
in the right-hand lane. That vehicle braked heavily to avoid colliding with the appellant’s car. The whole of the appellant’s vehicle crossed over the right-hand lane for northbound traffic, swiping the front left-hand corner of the oncoming vehicle damaging the bumper bar and wheel arch, and damaging the mirror on the passenger side of that vehicle. This conduct was the subject of count 1. The appellant’s vehicle continued on past that vehicle on the wrong side of the road and into the left-hand lane for vehicles travelling north. At that time a 26-year-old cyclist was cycling north in the left-hand lane. The appellant’s vehicle hit the cyclist, knocking him off his bike and causing him serious injury, including severe traumatic brain injury. The appellant’s vehicle then swerved back onto the correct side of the road, and continued to travel southwards. At no point did the appellant stop to check on the injured cyclist. This was the conduct the subjects of counts 2 and 3.
The appellant returned home. That evening, following a report from the appellant’s son (who resided with the appellant) that the appellant’s vehicle had been stolen from the appellant’s premises and then had been returned to those premises, a police officer attended at the appellant’s home. The officer examined the appellant’s vehicle and did not see any damage to the locks or the ignition system, but noted there was damage to both the driver’s and the passenger’s sides of the vehicle. The appellant told the officer that his car had been parked outside and ‘someone had stolen it but they have returned it to where I parked it’. Following further examination of the appellant’s vehicle by the Major Collision Investigation Unit, the next day the appellant was arrested. During his record of interview the appellant told the police that he didn’t know how the car had been damaged and maintained that someone must have stolen it. The appellant was not charged with these offences until 18 October 2007. He maintained his innocence throughout a number of committal and directions hearings between 22 October 2007 and the date the trial was listed, 18 May 2009. On that day the appellant changed his plea to a plea of guilty.
The appellant was aged 48 at the date of sentencing. He came to Australia in 1986 from Egypt and obtained employment with Toyota, where he worked until October 2006 when he was retrenched due to a shoulder injury. He met and married his wife in Egypt in 1987, and has two children with whom he resided at the time of the offences.
The appellant had four prior convictions, three for exceeding the speed limit (two of which were for exceeding the speed limit by more than 20 and 30 kilometres per hour) and one conviction for recklessly causing injury.
The cyclist, who had completed a Bachelor of Business and Diploma in Health Sciences and had been working at Epworth Health Care, suffered severe head injuries involving a closed head injury to the skull including subarachnoid and petechial haemorrhages and diffuse axonal injury to the brain resulting in permanent injury to the brain and impairment of function. His future employment prospects and prospect of further education have been substantially curtailed.
Grounds 1 & 2: Relevance of appellant’s personal circumstances and Mr Cummins’ diagnosis
Under cover of grounds 1 and 2, the appellant submitted that the learned sentencing judge erred in finding that counsel for the appellant had not relied upon ‘[a] psychological disorder or emotional state which would significantly impact upon [the appellant’s] moral culpability’, and in only giving the appellant’s personal circumstances and diagnosis ‘some limited weight by way of mitigation, insofar as they provide some explanation for [the appellant’s] conduct’.
In a psychological report dated 17 June 2009 which was tendered by the appellant on the plea, Mr Jeffrey Cummins expressed the opinion that at the time the appellant committed the offences he was suffering from an ‘Adjustment Disorder with Mixed Disturbance of Emotions and Conduct’ (DSM-IV-TR, Code 309.4) which would have ‘compromised his perception, judgment and reasoning.’ The Adjustment Disorder was said to have arisen in the context of a belief by the appellant that his wife was going to leave him. The appellant did in fact separate from his wife in August 2007. It was further reported that at the time of the offending, the appellant was ‘feeling overwhelmed’ by the fact that he had previously been charged by police for assault and resisting arrest, in circumstances where he had made an official complaint about being assaulted by five police officers at the Sunshine Police Station. These charges against the appellant were withdrawn in July 2006.
The sentencing judge, after accurately describing the content of the psychologist’s report, made the following comments about the relevance of the appellant’s adjustment disorder to the sentence:
Your counsel, in his submissions, did not expressly rely on Verdins' case. He did not submit that this situation amounted to a serious psychiatric illness, or psychological disorder, or emotional state that would significantly impact upon your moral culpability, but he relied upon it as a factor to be taken into account, by way of an explanation for your conduct which was out of character. I intend to give your personal circumstances and Mr Cummins' diagnosis and opinion some limited weight by way of mitigation, insofar as they may provide some explanation for your conduct. I note, however, that neither your counsel nor Mr Cummins was able to provide any clear explanation as to why it would be that your ‘adjustment disorder’ would cause you to engage in ongoing dangerous driving over a period of time, how it would cause you to drive erratically on to the wrong side of the road, or how it would cause you to flee the scene and then lie about it to the police.[2]
[2]R v Wassef [2009] VCC 870, [38], [39].
His Honour also, in summarising the matters that were put by counsel for the appellant by way of mitigation, stated that counsel for the appellant –
asked me to take into account that at the time of the erratic driving giving rise to these three charges, you were suffering a great deal of worry and stress which provided some explanation for your uncharacteristic conduct. As I have said, I will give that explanation some limited weight.[3]
[3]Ibid [42].
The appellant submitted that the learned sentencing judge was wrong to have concluded that the appellant’s counsel had not relied upon the psychological disorder as significantly impacting upon the appellant’s moral culpability, and that the sentencing judge had thus failed to give the adjustment disorder its proper mitigatory weight. It had not been suggested on the plea that the appellant’s adjustment order significantly reducing his moral culpability, nor had any reference been made to the principles stated in R v Verdins.[4] On appeal it was said that the principles in Verdins had been enlivened because counsel for the appellant on the plea had drawn a causal connection between the appellant’s adjustment disorder and his erratic and dangerous driving. Counsel for the appellant on the plea had told the sentencing judge that for some kilometres there had been erratic driving which was reflective of the fact that the appellant’s mind ‘was all over the place’ and that ‘the car was wandering across the road as his mind was wandering across the universe’. It had also been submitted that the appellant was not affected by alcohol at the time, but that ‘he was just out of his mind with worry and stress and he wasn’t being responsible’.
[4](2007) 16 VR 269 (‘Verdins’).
It is apparent from these comments that on the plea no attempt was made to submit that the appellant’s moral culpability for the offences should be regarded as significantly lower by reason of his adjustment disorder. While acknowledging before us that it had not been said on the plea that the principles in Verdins applied, counsel had referred to the diagnosis of adjustment disorder that was made in the report and that, it was said, was sufficient to require the sentencing judge to treat the disorder as reducing moral culpability. That submission cannot be sustained for important reasons.
First, it misconceives what must be established on the plea to entitle an offender to mitigation of sentence on the ground of a mental disorder or condition. In Verdins the Court stated that –
[w]here a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry.[5]
[5]Ibid 272.
The Court further stressed that for the purposes of sentencing,
[w]hat matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[6]
[6]Ibid 271.
The evidence relating to the effect of the adjustment disorder on the appellant at the time of the offending was very vague. It was for that reason that counsel on the plea did not seek to make more of the diagnosis than was justified. The conduct of the appellant could not be described as a single ‘momentary lapse’ of judgment or concentration. His Honour was right to conclude that no causal connection had been established between the ‘adjustment disorder’ and the continued dangerous driving or the appellant’s conduct after the collision.
Even if there had been evidence before the sentencing judge that may have supported the application of one or more of the principles discussed in Verdins, it was not relied upon in any relevant way. The submissions of counsel for a party must be sufficiently explicit to make clear to the sentencing judge that one or more of those principles are relied upon. The reasons why a party seeks to have the sentencing discretion exercised in a particular way must be made apparent to the sentencing judge. Had the bare opinion provided a basis for enlivening the principles in Verdins, it was rightly conceded in oral argument that as it had not been so identified during the plea, the sentencing judge was not obliged to treat such a matter as mitigating the sentence. It could not now be contended that there was error by the sentencing judge in failing to give greater weight to the appellant’s adjustment disorder as a mitigating factor.
These grounds are not made out.
Ground 3: Failure to give sufficient weight to the mitigating factor of the delay
Under cover of ground 3 the appellant submitted that the delay of three and a half years between the date of the offending and the date of sentencing should have been given more weight as a mitigating factor by the sentencing judge, particularly given the ‘rehabilitative impact’ of the delay.
In the course of summarising the matters in mitigation, the sentencing judge commented in relation to the delay of three and a half years:
That delay is not attributable to any act or fault on your part. It is significant that, whilst you were questioned by the police in January 2006, you were not charged with these matters until 18 October 2007. In accordance with well established principles, I give some weight to the uncertainty and anxiety that you must have suffered as a result of having to wait for these matters to be dealt with.[7]
[7]R v Wassef [2009] VCC 870, [43].
The appellant submitted that his Honour erred in only giving ‘some weight’ to the delay, given that there had been significant changes in the appellant’s life in the period between the date of the offending and the date of sentence. The appellant listed a number of ‘changes’ that had occurred in that period, including the fact that the charges against him in relation to the Sunshine police were withdrawn, his marriage had broken down, he had left the matrimonial home in August 2007, and he had been retrenched from Toyota, his employer for 20 years, in October 2006. None of these matters would require any mitigation in sentence. The appellant further relied upon the following as ‘rehabilitative features of the delay’:
· The appellant confessed his offending to his priest, Father Thomas Abdelmalek of St George’s Orthodox Coptic Church, and expressed remorse for his actions.
· After the marriage breakdown, the appellant maintained a close relationship with his 20 year old son and 13 year old daughter.
· After he left the matrimonial home, the appellant obtained accommodation in a house on the property of the Coptic Church where he engaged in voluntary work.
· The appellant has not subsequently re-offended.
The sentencing judge referred to each of these matters in his sentencing remarks. His Honour specifically took into account as a mitigating factor the appellant’s remorse as evidenced by his confession to Father Abdelmalek.[8] But his Honour was not in error in assigning these matters little weight as indicators of rehabilitation. As the respondent submitted, despite his confession very soon after the offending, the appellant did not change his plea to guilty until almost three and a half years later.
[8]Ibid [45].
The appellant has not established that the sentencing judge gave insufficient weight to the delay between the offending and the sentencing. Accordingly I would reject this ground of appeal.
Ground 4: The individual sentences, the total effective sentence and the non-parole period are manifestly excessive
Under this ground the appellant submitted that all of the sentences including the total effective sentence and non-parole period were manifestly excessive when regard was had to the mitigating factors present.
Failing to stop after an accident and render assistance
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.[9]
[9]Victoria, Parliamentary Debates, Legislative Assembly, 5 May 2005, 942–3.
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.
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:[10]
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.
[10](2008) 50 MVR 413, 418.
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.[11] 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.[12] 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.[13]
[11]See for example Director of Public Prosecutions v Massey [2008] VSCA 254; Guthridge v R (2010) 55 MVR 548.
[12] R v Mohamed (2009) 53 MVR 82; DPP v Massey [2008] VSCA 254; Guthridge v R (2010) 55 MVR 548; R v Harding (2008) 50 MVR 413.
[13]R v Harding (2008) 50 MVR 413, 418.
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 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 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 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 explanations 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.
Reckless conduct endangering a person and dangerous driving causing serious injury
On the counts of reckless conduct endangering a person and dangerous driving causing serious injury, I am not persuaded that the sentences imposed were manifestly excessive. The appellant’s dangerous driving, which continued for some distance, posed an extremely serious threat to the safety of others on the roadway. It is only good fortune that only one person was injured. Although the appellant eventually pleaded guilty, the discount to which he was entitled was rightly reduced as it was almost three and a half years after the event that he was first willing to acknowledge his guilt.
Ground 5: Fresh evidence about deterioration of appellant’s health which will make prison more burdensome
The appellant suffers from Type 1 diabetes, for which he is required to inject himself with insulin on a daily basis. He also takes medication for a kidney illness and had, at the date of sentencing, recently had surgery to his right knee. These matters had been taken into account as matters in mitigation.[14]
[14]R v Wassef [2009] VCC 870, [42].
On appeal the appellant relied upon new material which was not available to the sentencing judge at the time of sentence, or at the hearing of the application for leave to appeal, which indicated that the appellant’s health has deteriorated to the point where imprisonment would be particularly burdensome for him. Affidavits were filed and tendered from the appellant’s son and a former inmate at Fulham Correctional Centre and from the appellant’s medical practitioner. The affidavits were admissible as demonstrating that which was not known at the time of sentence, namely the deterioration of the appellant’s diabetic condition and general health as a consequence of his imprisonment.[15]
[15]R v Duc Nguyen [2006] VSCA 184 .
The appellant requires large insulin twice a day. It appears that the insulin is administered in a different location from where the appellant is required to prepare and eat his meals. On the basis of prison records, the appellant’s medical practitioner has deposed that the appellant has had a number of hypoglycaemic episodes, which have led to the appellant ingesting larger amounts of food at the beginning of a meal to overcome the hypoglycaemia. The pathology results which have been obtained support the opinion of the medical practitioner that his diabetic condition is not being adequately managed. His family and the medical practitioner have noted that the appellant has developed abdominal obesity and there has been a noticeable deterioration of his eyesight, a well-recognised consequence of diabetes. The affidavits also disclose that for a number of reasons the appellant’s essential dietary needs are not being met. It is suggested that other prisoners take the appellant’s food.
The respondent, having been granted leave to file answering affidavit material, now relies upon two affidavits in response to the affidavits filed by the appellant. The first is from the acting Assistant Commissioner Management Services of Corrections Victoria. Based upon information provided by the General Manager at Fulham prison, where the appellant is housed, the deponent addresses some of the issues raised in the affidavits filed on behalf of the appellant. Relevantly, the deponent deposes that the appellant was asked about whether other prisoners were taking his food while he is at work, and that he stated that there was sufficient food available to him, but that it was not food to his liking.
The second affidavit filed by the respondent is sworn by the Director of Justice Health, a business unit of the Department of Justice that is responsible for all health care services delivered to prisoners in the Victorian corrections system. This affidavit seeks to address the primary medical matters raised in the appellant’s affidavits and in particular the opinions expressed that there has been a significant deterioration in the appellant’s health.
The Director deposes that the prison has a chronic health care plan in place for the appellant pursuant to which he receives ongoing medical treatment, and that his diabetes is reviewed at least monthly by a medical officer. He attends the medical centre twice a day for nurses to monitor his blood sugar levels and administer insulin, and is seen regularly by a podiatrist and an optometrist. The Director deposes that the appellant is provided with a diabetic menu from the prison kitchen, and receives a weekly diabetic pack that he can keep in his cell, and that he has received and continues to receive extensive education from prison health staff about how to manage his diabetes through a healthy diet and exercise.
The Director further deposes that medical staff at the prison report that despite this education, and despite having discussed his diet and lifestyle choices with prison health staff on many occasions, the appellant continues to choose unhealthy diet options which increase his blood sugar levels, and does not exercise. She deposes that, as a result of the appellant’s choices and resulting increased blood sugar levels, the health staff made a clinical decision to increase his prescribed dose of insulin.
According to the Director, medical staff at the prison have advised that the hypoglycaemic episodes that the appellant has suffered whilst incarcerated were caused by the appellant failing to eat breakfast after receiving his morning dose of insulin and instead going straight to work or occasionally going for a walk. The Director deposes that since having been advised by prison staff as to the relationship between receiving the insulin and consuming food, the appellant has followed these instructions and has not had any further hypoglycaemic episodes.
The Director disputes the assertion made by the appellant’s medical practitioner in his affidavit that the appellant’s condition is not being adequately monitored and treated in prison. In essence she deposes that it is the appellant’s failure to take responsibility for his own health in terms of making healthy lifestyle choices that is the cause of his poor control of his diabetes, rather than any insufficiency in the health services provided to the appellant while in prison.
Following the service of the affidavit of the Director of Justice Health, some uncertainty arose as to whether the appellant wished to have a further hearing in order to have an opportunity to make further submissions and to cross-examine the deponents of the respondent’s affidavits. Following a number of communications with both parties in which attention was drawn to the fact that the appellant bore the onus of satisfying this Court beyond reasonable doubt of the matters that he asserted, namely that his condition cannot be adequately treated whilst incarcerated, the Court was advised that the appellant wished to have a further hearing. This was listed for hearing during term one in 2011. The Court was subsequently advised that the appellant no longer wished to proceed with the further hearing, and was content for the Court to reach a decision on the basis of the affidavit material already filed.
The affidavit material of both parties shows that there has been a deterioration in the appellant’s health as a result of his diabetic condition since his incarceration. However, the affidavits filed on behalf of the respondent are to the effect that the appellant’s health is monitored, that he is offered an appropriate diet, and that the deterioration in his health is attributable to the appellant’s repeated non-compliance with the medical regime that prison staff have advised him to follow to ensure that his blood sugar levels are kept under control.
It is for the appellant to show that his condition has deteriorated as a consequence of inadequate treatment and diet and not, as the respondent alleges, because of unhealthy choices made by the appellant. If he is responsible for the deterioration in his health and such deterioration could have been avoided within the prison system, the appellant cannot maintain that prison has become more onerous than was anticipated at the time he was sentenced. As the Court is unable to resolve the obvious conflict in the affidavit material filed by the parties, the appellant has failed to discharge his burden of proof. Accordingly, this ground of appeal fails.
The appeal must be dismissed.
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