Berzad Spijodic and v The Queen and - [2014] VSCA 251

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0180

BERZAD SPIJODIC

Applicant

THE QUEEN

Respondent

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JUDGES:	MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2014
DATE OF JUDGMENT:	8 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 251
JUDGMENT APPEALED FROM:	DPP v Spijodic (Unreported, County Court of Victoria, Judge Quin, 13 June 2014)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing serious injury (2 charges) – Sentenced to 18 months’ imprisonment, 12 months suspended – Applicant diagnosed, after commencement of incarceration, with cyst in close proximity to brain – Passing mention on plea of applicant suffering headaches – Applicant elected to refuse surgical treatment during custodial portion of sentence – Whether fresh evidence – Whether new circumstances such that sentence should be reduced – Individual sentences and total effective sentence lenient – No lesser sentence warranted – Application refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Stephen Andrianakis & Associates
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

The applicant pleaded guilty, in the County Court at Melbourne, to two charges of dangerous driving causing serious injury. He was sentenced on 13 June 2014 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Dangerous driving causing serious injury [Crimes Act 1958 s 319(1A)]	5 years’ imprisonment	15 months	Base
2	Dangerous driving causing serious injury [Crimes Act 1958 s 319(1A)]	5 years’ imprisonment	3 months	3 months
Total Effective Sentence:		18 months’ imprisonment (12 months suspended with an operational period of 24 months)
Non-Parole Period:		Nil
Pre-sentence Detention Declared:		Nil
6AAA Statement:		18 months’ imprisonment
Other orders: Licence cancelled and disqualified for 18 months from 13 June 2014

The applicant now seeks leave to appeal on the following ground:

Fresh evidence as to the applicant’s medical condition since the sentence was imposed demonstrates the true significance of facts in existence at the time of sentence such that a different sentence should now be imposed to avoid a substantial miscarriage of justice.

Background

On 30 June 2012, the applicant was driving his utility vehicle on a two-lane sealed road in a rural area. He had with him in the front passenger seat his girlfriend’s 12 year old son.

As the applicant approached an intersection, he failed to notice that a large truck and trailer, which was travelling ahead of him in the same direction, was slowing down to make a left-hand turn. He attempted to avoid the truck by braking suddenly and moving towards the left. His vehicle veered partially onto the grass shoulder before he steered it to the right, travelling over the centre line. It collided with the front driver’s side of a van travelling in the opposite direction.

The collision pushed the van off the road, where it rolled and finished on its side. The victim, who was the driver of the…

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.

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Details

Case: [2014] VSCA 251
Decision Date: 8 October 2014

CaseChat Overview and Summary

Berzad Spijodic appealed against his sentence for dangerous driving causing serious injury, following his conviction in the County Court. Spijodic was sentenced to 18 months' imprisonment, with 12 months suspended, for two charges of dangerous driving causing serious injury. After beginning his incarceration, Spijodic was diagnosed with a cyst near his brain, which was discovered incidentally. During sentencing, there had been a passing reference to Spijodic suffering from headaches, but this was not the primary focus of the proceedings. Spijodic opted not to undergo surgical treatment during his time in custody. The appeal raised questions about whether the new medical evidence constituted fresh evidence and whether the new circumstances warranted a reduction in the sentence.

The appeal court examined whether the new medical evidence constituted fresh evidence that could be considered. The court also assessed whether the new circumstances, including Spijodic's medical condition, justified a reduction in the sentence. The appeal court considered the individual sentences for each charge and the total effective sentence, concluding that the sentences were lenient. The court determined that there was no lesser sentence warranted and that the appeal did not raise a point of principle. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders