Arpaci v The Queen

Case [2020] VSCA 81

SUPREME COURT OF VICTORIA  
COURT OF APPEAL

S APCR 2018 0204

ADEM ARPACI Applicant

v

THE QUEEN

Respondent

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JUDGES: MAXWELL P, PRIEST and KAYE JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 12 February 2020
DATE OF JUDGMENT: 7 April 2020
MEDIUM NEUTRAL CITATION: [2020] VSCA 81
JUDGMENT APPEALED FROM: DPP v Arpaci (Unreported, County Court of Victoria, Judge Hogan, 9 February 2018) (Conviction); [2018] VCC 285 (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Culpable driving causing death – Applicant engaged in high speed race with another vehicle – Other vehicle crashed resulting in deaths of driver and passenger – Whether verdict unsafe and unsatisfactory – Whether applicant’s driving a substantial and operating cause of deaths – Whether trial judge erred by diluting separate consideration direction – Whether evidence of applicant’s attendance at illegal street car event admissible – Whether evidence that applicant revved engine admissible – Whether trial judge should have given propensity direction – Whether trial judge erred when directing jury on standard of proof – Whether trial judge erred by directing jury to use life experience – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Applicant convicted of two charges of culpable driving causing death – Applicant pleaded guilty to one charge of perjury – Total effective sentence 14 years’ imprisonment with non-parole period 9 years and 6 months – Whether total effective sentence, orders for cumulation and non-parole period manifestly excessive – Whether individual sentences imposed on culpable driving charges manifestly excessive – Whether sentencing judge erred in finding applicant’s moral culpability ‘slightly reduced’ by reason of gross negligence of other driver – Leave to appeal granted – Appeal allowed – Resentenced to 10 years and 6 months’ imprisonment with non-parole period of 7 years – Spanjol v The Queen (2016) 55 VR 350 applied.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr R van de Weil QC
with Mr R Edney 		Tas Roubos & Associates Ltd
For the Respondent   Mr C B Boyce QC
with Ms E Ruddle 		Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

  1. I have had the considerable advantage of reading in draft the respective reasons for judgment of Priest JA and Kaye JA.  For the reasons given by Kaye JA, I agree that the applications should be determined as his Honour proposes.

PRIEST JA:

Overview

  1. At about 1.30 am on Wednesday, 27 January 2016, the applicant, then aged 21 years, was driving a Ford XR6 sedan south-westerly on the Western Ring Road, with his friend Sinan Yelman as his passenger, when he engaged in a high speed race with another vehicle. 

  2. The other vehicle, a blue Holden utility, was driven by Harley Churchill (aged 19), with a passenger, Ivana Clonaridis (aged 18).  On the approach to the E J Whitten Bridge, East Keilor, at a point when Mr Churchill’s vehicle was travelling at not less than 182 kph, the driver’s side rear tyre of his vehicle blew out effectively causing him to…

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Adem Arpaci v The Queen [2020] VSCA 81
Case
[2020] VSCA 81
Decision Date

CaseChat Overview and Summary

The case of Arpaci v The Queen involved an appeal against the conviction and sentence of the applicant, who was found guilty of culpable driving causing death. The applicant was engaged in a high-speed race with another vehicle, which resulted in a crash that caused the deaths of the driver and a passenger of the other vehicle. The applicant sought leave to appeal against both his conviction and sentence, arguing various grounds of error. The appeal against conviction was dismissed, while the appeal against sentence was allowed, leading to a resentencing by the court.

The legal issues before the court included whether the applicant's driving was a substantial and operating cause of the deaths, whether the trial judge erred in diluting the separate consideration direction, and whether the evidence of the applicant's attendance at an illegal street car event and evidence that he revved his engine was admissible. Additionally, the court considered whether the trial judge should have given a propensity direction, whether the judge erred in directing the jury on the standard of proof, and whether the judge erred by directing the jury to use their life experience. The court also examined whether the sentence, orders for cumulation, and non-parole period were manifestly excessive.

The court found that the verdict was not unsafe and unsatisfactory and that the trial judge did not err in the directions given to the jury. The court held that the evidence of the applicant's attendance at the illegal street car event and the revving of his engine was admissible. The court further found that the trial judge did not err in the directions on the standard of proof or by directing the jury to use their life experience. However, the court found that the sentencing judge had erred in imposing identical sentences on the two charges of culpable driving, in finding that the applicant's moral culpability was only 'slightly reduced' by the gross negligence of the other driver, and in the overall sentence being manifestly excessive. The applicant was ultimately resentenced to 10 years and 6 months' imprisonment with a non-parole period of 7 years.

The court dismissed the appeal against conviction and allowed the appeal against sentence. The applicant's total effective sentence was reduced to 10 years and 6 months' imprisonment with a non-parole period of 7 years. The resentencing was in line with the principles outlined in Spanjol v The Queen, which emphasised the need for a sentence to reflect the seriousness of the offence and the need for deterrence and rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Before turning to the issues raised by the grounds of appeal, it is necessary to set out the evidence in the trial in moderate detail,[5] and to summarise the manner in which the prosecution case was put.The evidence[5]Much of the evidence was, as I have indicated, put before the jury by playing the recoded evidence of witnesses from the applicant’s first trial. The evidence of the following witnesses was received in that fashion: David Szadurski; Brandon Arnott; Matthew Hargraves; Carly Decker; Gani Vatensever; Ryan Cameron-Smith; Chloe Tribe; Nathan Kleeven; Cain Mitchell; Claudia Strinavic; Michael Azzopardi; Mason King; Argapi Lianos; Marcia Hunter; Paul Moss; Darcy England; Trevor Nicholas; Jayde Weil; Gerard Clanchy; and Henrich Bouwer. The scene The Western Ring Road (‘the Ring Road’) is an urban freeway connecting the northern and western suburbs of Melbourne to other urban and rural freeways. At the scene of the collision, it is straight in alignment and has a south-west to north-east orientation. The road is bitumen, and the north-east and south-west bound lanes are divided by a grass median strip. A steel ‘Armco’ railing safety barrier was erected on the left-hand and right-hand side of the south-west bound lanes to prevent vehicles crossing to the incorrect side. There were three lanes for south-west bound traffic, delineated by broken white lines; and a sealed emergency lane on both sides of the south-west bound traffic lanes, delineated by a solid white line. A large grassed verge area — which ran slightly uphill and then ran down into a valley to the south — was situated parallel to the sealed emergency lane on the southern side of the south-west bound lane. The E J Whitten bridge runs over a deep valley at the bottom of which is the Maribyrnong River. At the point where the collision occurred, the speed limit was 100 kilometres per hour. Kayla Kelly gave evidence that, in the evening of 26 January 2016 — which was the Australia Day public holiday — she went to an event known as the ‘Northern Skids’ with Gani Vatansever, Carly Decker, Brandon Arnott and Matthew Hargraves. She described the Northern Skids as ‘basically an illegal car meet’ where up to 300 cars will attend ‘to go and do burnouts’. Ms Kelly and her companions left the Northern Skids — which had moved to different locations during the evening, finally to Thomastown — at about 1.00 am, and started heading for home in Melton. At the set of lights at Pascoe Vale Road, before the entrance to the Ring Road, their vehicle pulled up beside a silver Ford Falcon, which was on the passenger side of their vehicle. She said: ‘once he had pulled up beside us I heard a constant revving sound which … would be his foot tapping the accelerator, and that indicated that he wanted to drag race with us’. Later, as her vehicle was travelling on the Ring Road, the silver Ford Falcon and a ‘blue ute’ went ‘flying past’. After the tail lights of the two vehicles had disappeared she heard a ‘loud explosion’ and saw ‘a massive orange glow in the air’. When her vehicle got to the next bridge, she saw the ute had gone down the embankment, and she called ‘000’ emergency services.

Decision

Reasons for decision

For those reasons, I would not uphold ground 4 of the application. Summary of conclusions on application for leave to appeal against conviction For the foregoing reasons I have reached the following conclusions:(1)The application for leave to appeal on grounds 1(ii), 2A(ii) and (iii), 2B and 6 should be refused.(2)The application for leave to appeal on grounds 1(i), 2A(i), 3, 4 and 7 should be allowed, but the appeal on those grounds should be dismissed. Before departing from the application for leave to appeal against conviction, it is appropriate to acknowledge that the judge’s charge to the jury was commendably thorough and well structured. Her Honour gave clear directions to the jury about the elements of the charges against the applicant, and the issues that were in dispute. She identified and summarised the evidence that was relevant to those issues, and explained to the jury the manner in which each side put its case. In doing so, her Honour ensured that, when the jury deliberated on its verdicts, it had a full understanding of the relevant legal principles that it must apply, the issues that it must determine, and the evidence that related to those issues.Application for leave to appeal against sentence Before the commencement of the trial, the applicant had pleaded guilty to a separate charge of perjury, arising out of the false statement that he had made to police on 3 February 2016 denying any knowledge of or involvement in the accident. After a plea that was made on his behalf, the applicant was sentenced to a total effective term of imprisonment of 14 years with a non-parole period of 9 years and 6 months, on the two charges of culpable driving, and the additional charge of perjury. That sentence was constituted as follows: The applicant seeks leave to appeal the sentences on the charges of culpable driving on three grounds, namely:Ground One The sentencing judge erred by imposing identical sentences on the two charges of culpable driving Ground Two The sentencing judge erred in finding that the applicant’s moral culpability was only ‘slightly reduced’ in circumstances where it was accepted by the prosecution that the deceased HC had by his driving and involvement in competitive racing and use of underinflated tyres played a causal role in the collision.Ground Three The sentences imposed on the charges of culpable driving, orders for cumulation, non-parole period and total effective sentence are manifestly excessive.The plea At the time of the offending, the applicant was 21 years of age. He commenced his secondary education at Keilor Downs Secondary School, and completed it at Year 12 level. He then engaged in further study at Victoria University, obtaining a Certificate IV in Accounting. He also gained qualifications in security operations and various warehouse licences. The applicant had been in continued employment for the period of eighteen months preceding the offending as the manager in transport and logistics in a company. His employment was terminated as a result of his arrest, as it was a requirement that he had a motor vehicle licence in order to perform his work.

Ratio Decidendi

Legal Principle Established

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