Delzoppo v The Queen - [2011] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0281

DAVID LESLIE DELZOPPO
	v
THE QUEEN

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JUDGES:	ASHLEY and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2011
DATE OF JUDGMENT:	12 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 141
THE SENTENCE APPEALED FROM:	(Unreported, County Court of Victoria, 20 July 2010, Judge Wood)

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CRIMINAL LAW – Sentence – Dangerous driving causing serious injury – Sentence of two years and six months’ imprisonment – 12 months’ of sentence suspended – Whether sentence manifestly excessive – Level of appellant’s culpability – Serious injuries sustained by appellant – Delay – Depression and anxiety – Appeal dismissed.

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Thomas	Grigor Lawyers
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

The appellant, David Delzoppo, was sentenced on 20 July 2010, on a count of driving in a manner dangerous causing serious injury, to which he pleaded guilty, to two years and six months' imprisonment. He was also sentenced on matters uplifted from the Magistrates’ Court. For an offence for failing to stop after an accident he was sentenced to 14 days’ imprisonment cumulative. On a charge of careless driving he was fined $800. On a charge of excess blood alcohol he was fined $700, and his licence was cancelled for a 13 month period.

The judge suspended 12 months of the head sentence for a period of three years. In consequence, the appellant must serve 18 months and 14 days’ imprisonment before the period of the suspended sentence commences.

Grounds

On 17 November 2010 I granted the appellant leave to appeal against sentence. As finally argued, counsel relied upon a single ground – that the sentence imposed for the principal offence was manifestly excessive.[1]
[1]Counsel for the appellant sought to rely, at the hearing, upon a ground that there was fresh evidence concerning the extent of the appellant’s injuries, a matter going in mitigation of penalty. He sought to rely upon a medical report dated 16 December 2010. It emerged that the report had been in the hands of counsel previously engaged, who by a written outline of submissions dated 17 January 2011 had abandoned the ground. After argument, the Court ruled that the report could not be introduced, and the ground was not pursued. But it was made clear to counsel that he was not precluded from relying upon medical reports which were in evidence on the plea in his argument on the manifest excess ground.

Circumstances

On 6 March 2008, at the intersection of Melrose Drive and Mickleham Road, a van driven by the appellant collided with the passenger side of another vehicle. The collision was minor. This incident gave rise to the charge of careless driving.

The appellant did not stop his vehicle as he should have done. That led to the charge of failing to stop after an accident.

The appellant then drove north in Mickleham Road. About one kilometre…

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 Delzoppo v The Queen

Details

AGLC: Delzoppo v The Queen [2011] VSCA 141
Case: [2011] VSCA 141
Decision Date: 12 May 2011

CaseChat Overview and Summary

Delzoppo v The Queen concerned the sentencing of an appellant for dangerous driving that resulted in serious injury. The appellant was convicted and sentenced to two years and six months in prison, with 12 months of that sentence suspended. The appeal was directed towards the severity of the sentence, arguing that it was manifestly excessive. The appellant contended that the trial judge did not adequately consider their level of culpability, the injuries sustained, the delay in sentencing, and their mental health conditions of depression and anxiety. The court was required to determine if the sentence was appropriate and if the appellant's circumstances warranted a reduced sentence.

The court examined the appellant's level of culpability, the seriousness of the injuries caused, and the impact of the delay in sentencing. It considered the appellant's mental health conditions but found that these factors, while relevant, did not sufficiently justify a departure from the trial judge's sentence. The court emphasised that the trial judge had thoroughly considered the appellant's culpability and the nature of the injuries in determining the sentence. Furthermore, the court held that the delay did not warrant a reduction in sentence, as it was not due to any fault of the prosecution. Ultimately, the court concluded that the sentence was appropriate and not manifestly excessive.

As a result of this reasoning, the appeal was dismissed. The court upheld the original sentence, finding that it was neither manifestly excessive nor inappropriate given the circumstances of the case. The court's decision highlighted the importance of considering the culpability of the offender, the harm caused, and the procedural fairness in sentencing. This case reinforces the principle that appeals against sentence will only be successful if the original sentence is shown to be manifestly excessive or inappropriate.

Orders