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Wassef v The Queen

Wassef v The Queen

Case [2011] VSCA 30 16 February 2011

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wassef v The Queen

Details

AGLC: Wassef v The Queen [2011] VSCA 30
Case: [2011] VSCA 30
Decision Date: 16 February 2011

CaseChat Overview and Summary

In the matter of Wassef v The Queen, the appellant was convicted of failing to stop after an accident, reckless conduct endangering a person, and dangerous driving causing serious injury. The case was heard by the High Court of Australia. The appellant appealed against the sentence of three years and six months’ imprisonment, arguing that it was manifestly excessive. The appeal centred on whether the principles outlined in Verdins should be applied to the sentencing, and whether the sentence was excessive in light of the appellant’s health issues.

The court was required to consider whether the Verdins principles were applicable in this case. The principles in Verdins pertain to the sentencing of offenders who have a significant intellectual or psychiatric disability that affects their moral culpability. The appellant argued that the principles should apply due to an adjustment disorder and delay in sentencing. The court also considered the delay in sentencing and the appellant’s health issues, specifically his diabetes and its deterioration in prison. The appellant submitted that the delay and health issues warranted a reduced sentence.

The court found that the principles in Verdins were not explicitly relied upon, and that there was a vague causal connection between the appellant’s adjustment disorder and the collision. The court held that the sentence was not manifestly excessive, despite the delay in sentencing and the appellant’s health issues. The court noted that the statutory maximum penalty for the offences had increased, and that the sentence reflected the seriousness of the offending and the need for deterrence. The appeal was dismissed, and the sentence upheld.

Orders