Director of Public Prosecutions v Georghiou

[2019] VCC 589

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02289

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW GEORGHIOU

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2019
DATE OF SENTENCE:	1 May 2019
CASE MAY BE CITED AS:	DPP v Georghiou
MEDIUM NEUTRAL CITATION:	[2019] VCC 589

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Plea of guilty – Dangerous driving causing death
Legislation Cited:	Crimes Act 1958; Sentencing Act 1991
Cases Cited:	DPP v Toomey [2006] VSCA 90; Bell v The Queen [2018] VSCA 281; DPP v Janson [2011] VSCA 19; DPP v Neethling [2009] VSCA 116; Hall v The Queen [2010] VSCA 349; R S J v The Queen [2012] VSCA 148
Sentence:	Convicted and sentenced to a community correction order for 3 years, ordered to pay a fine in the sum of $10,000 and, ordered that the offender’s licence be cancelled for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Plea: Mr K. Doyle Sentence: Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Mr I. Crisp	Thexton Lawyers

HIS HONOUR:

1Mr Georghiou is aged 84, having been born on 2 December 1934. He was 83 at the time of this crime. He pleaded guilty to the indictment before this Court on 29 March 2019, he was represented by Mr Crisp. Mr Doyle appeared on behalf of the Director and Mr D'Arcy appears today. The charge on the indictment is under s.319(1) of the Crimes Act, a charge of dangerous driving causing death.  That death occurring on Thursday 4 January 2018 on Beach Road at approximately 5.45 am.  The person killed was Mr Allan Lawson, who at the time was 58. 

2The seriousness of this offence is demonstrated by the fact that Parliament, on behalf of the community, has provided a maximum prison sentence that can be imposed for such offence as ten years.  That in itself indicates the seriousness with which the community views this offence.

3From reading all of the victim impact statements, in particular, Mr Lawson's wife Gina, Exhibit G, Mr Lawson's sisters Heather, Exhibit H, Margaret, Exhibit J, Wendy, Exhibit K and, Jeanette, Exhibit L, they demonstrate that Mr Allan Lawson was truly a remarkable man.

4To be able to cope as well as he did with his afflictions, brought about by the Usher syndrome which has impacted on the whole of the family, is testament to his self-will and pride.  His life was such that he was chosen in 2000 to carry the Olympic torch on its way to Sydney, during the time that it travelled through Highett. 

5Mr Lawson continued in his life a pattern of early morning walks.  Indeed this being what he was doing the morning he was killed, despite having no functional vision and needing the aid of a cane.  Many outings he went on with his wife, indeed cruises, and also he entered into community events throughout Sandringham.  Again the materials show that in his life he was an inspiration to all of his family, but in particular his two sisters, Heather and Jeanette, who suffer a similar affliction.

6A touching memorial to Allan is the portrait mural painted on Beach Road at the end of Bay Street.  That mural is appropriately endorsed with the words 'Courage and Determination'.  When one actually sees the memorial, one also sees that they are also printed in braille.  That his life was ended that morning by Mr Georghiou's dangerous driving is truly a tragedy for Mr Lawson's family.

7The victim impact statements speak of the impact of this death.  Firstly, the immediate shock to all the family.  In particular, the period during which their partner and brother Mr Lawson was on life support.  The direct mourning thereafter, and the ongoing mourning involved in the adjustments of life, particularly for his wife Gina, and the need for counselling for her.  Of course, in particular, for his two sisters and Gina, such is made more difficult because of their own physical issues.

8Despite all such pain and loss, I was very impressed with the warmth and humanity of the testimonials. I would like to quote from Wendy Pruen's statement which became Exhibit K, at p.4 Ms Pruen said this.

"My writing this statement is not about revenge, nor is it with anger towards Mr Georghiou.  Resentment, maybe, yes and the constant questioning of why it had to be my brother on that pedestrian crossing.  I guess I just need to know that a huge mistake has been owned by Mr Georghiou and a very important lesson has been learnt and a clear message is continually put out to the public that driving and fatigue do not mix.  Consequences can and do occur which effect so many people, as it has with our family.  Another link has been broken in our family chain, a very special link, my brother Allan'.

9Those words and admirable sentiments are not in any way to gainsay the seriousness of Mr Georghiou's crime.  It is, however, important, and clearly recognised by the family, that this Court cannot change the loss of their partner and brother, or overcome their mourning.  Indeed, no sentence involving Mr Georghiou will bring Mr Lawson back. 

10However, it is important, that courts effect as best they can, social rehabilitation and vindication of the rights of victims.  In DPP v Toomey [2006] VSCA 90, Vincent A. J. said:

'That the social rehabilitation and vindication of rights of victims is important in the sense that the imposition of a sentence signifies the recognition by society of the nature and significance of the wrong, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator'.

11Further, at [22] His Honour said:

'The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly'.

12Mr Crisp tendered plea submissions, Exhibit 1, and at all times his client expressed, by his plea, acceptance of his responsibility for this crime.  The plea made by Mr Georghiou was specifically made on the basis of the facts set out by the learned prosecutor in Exhibit A. 

13Importantly those facts were these.  Firstly, a failure by Mr Georghiou to keep a proper lookout.  Secondly, a failure to see Mr Lawson at the crossing and an acceptance, that upon activation of the light by Mr Lawson at 5:45:14 that morning, there would have been a six second delay before the lights would enable Mr Lawson to begin to cross.  This period being described as the 'inter-green' stage.

14Thirdly, and importantly, that he hit and made contact with Mr Lawson while
Mr Lawson was on the crossing.  That that impact occurred approximately one metre into the path that Mr Lawson had taken on the crossing and that such would have taken him somewhere between one to three seconds.  All of those factors would have happened, that is, him being at the crossing, the inter-green stage and him progressing across the crossing, as Mr Georghiou was approaching the crossing. 

15It is clear from an observation of all the material, and indeed observing the scene itself, that after you come around the corner when you are travelling south, Mr Georghiou would have had at least a clear 230 metres view of the crossing, which given the speed at which he was travelling, would, had he been keeping a proper lookout enabled him to see the lights and Mr Lawson.

16One explanation for the failure to keep a proper lookout, and to see Mr Lawson waiting at the crossing and indeed moving across the crossing, was the fatigue which Mr Georghiou was encountering, owing to the amount of time he had been awake prior to this accident.  In that regard, I quote from Exhibit D, which is the report of Dr Frenkel.  Dr Frenkel is a medical specialist who specialises in sleep disorder analysis. Mr Georghiou had been awake for some fifteen hours and nine minutes at a minimum, before the accident occurred.  He had arrived at the Crown Casino at 2.18 pm the day before. I read from Dr Frenkel's report at p.6:

'The collision occurred at 5.45, which is within the circadian nadir of a period of impaired alertness.  The risk of crashes caused in serious injury is increased six-fold if driving between 2 am and 5 am.  The impaired driving performance and reaction time seen during this period, likely reflect an interaction between a high homeostatic drive for sleep, due to extended wakefulness, superimposed on the high circadian drive for sleep'.

17Without explaining the technicalities, Dr Frenkel concluded:-

'It is likely that fatigue contributed to the collision involving Mr Georghiou.  The collision reconstruction evidence and Mr Georghiou's inattention to important surrounding visual queues, are supportive of this.  No other evidence has been presented to support alternative causes.  It is likely that the extended wake time and the circadian effects contributed to the fatigue'.

18The further fact before the Court was that when Mr Lawson was hit,
Mr Georghiou's car was, according to an eye witness, travelling at approximately 60 kilometres per hour.  It should, however, be noted that the collision reconstructionist, Dr Mehegan, estimated the speed at the time of collision between 45 and 54 kilometres per hour.  I point out of course that that is well within the permitted speed limit on Beach Road.

19The comment made by Mr Georghiou in the record of interview which I accept, was that he believed at the time, this is when he spoke to by the police shortly after the incident, that the lights were green.  It seems to me that that must have been part of his failure to keep a proper lookout on that morning, because the only lights that could have been green would be the lights at Bay Road.  The causes for such failures are no doubt not only his tiredness. I was initially of the view that the defects in his vision were such that he probably should not have been on the road at all.  I must say personally, I still hold that view.  However, one has to note that not only was he under the constant care of his medical practitioner, but following this accident, he was assessed as still being suitable for being on the road.

20The other factor that no doubt would have impacted upon his abilities that morning was that as shown by the “run through” prepared by the prosecution, which I have viewed, clearly at that particular time, it was very early dawn.  Given those facts, as I said which were accepted by Mr Crisp, one comes then to assess the objective criminality of this crime.

21Mr Crisp submitted that this crime involved momentary inattention.  As I said to Mr Crisp, it is always an issue as to what that means. Recently the Court of Appeal in Bell v The Queen [2018] VSCA 281, Appeal Justice Ashley, said:

'The content of what can be encapsulated within the description, that is, momentary inattention, can be an issue'.

22I also refer in this instance to DPP v Janson [2011] VSCA 19, [16] – [19]. Here, however, I find we have linking circumstances which led to this inattention:- the fatigue as I have referred to, given the opinion of Dr Frenkel - the length of time that Mr Lawson was waiting at the crossing - the period involved in his actual crossing, before the collision and - the distance that Mr Georghiou should have had a clear view of these circumstances and the operation of the lights.

23Momentary inattention in this case must encompass all of those factors.  Further I find that the inattention in this matter encompassing those factors, places the culpability objectively in this case at mid-range.  As pointed out by the learned prosecutor, the Court of Appeal decreed in DPP v Neethling [2009] VSCA 116, that given the importance of general deterrence in these crimes, that a non-custodial sentence for such a crime must be seen as exceptional.

24Based upon my objective finding of the heinousness as being mid-range, the crime calls for an immediate sentence of imprisonment.  It is however important, and this is a factor that needs to be pointed out regularly by courts, and was as detailed recently by the Court of Appeal, in Hall v The Queen [2010] VSCA 349 as follows:

'The first task of sentencing is to assess the heinousness of the conduct.  As I said, I have assessed this at mid-range for these crimes.  The second task is to consider the offender's personal circumstances, which may go to mitigation of penalty'.

25Indeed, without wishing to examine each particular factor minutely put by
Mr Crisp, he relied upon the totality of those factors to seek in the particular circumstances, what must be seen as an exceptional sentence.  That is, a sentence not involving immediate imprisonment.  Importantly, such sentence which was sought, given the particular factors relied upon, was in submission by the learned prosecutor, seen as within the range that this Court may impose.

26Those factors are these.  Firstly, Mr Georghiou’s immediate stopping and assistance, albeit in the circumstances, of a limited degree.  Secondly, the cooperation of Mr Georghiou, despite his original views as to how the accident may have occurred.  Thirdly, the early plea and its utilitarian benefit, particularly in the circumstances of this case.  Fourthly, the genuine remorse.  This has been referred to in a number of matters that have come before this Court.

27Firstly, Exhibit 4, the character references.  They are significant, as to their characterisation of Mr Georghiou and speak to what they have perceived as the genuine remorse of Mr Georghiou as being the cause of Mr Lawson's death, through his own driving.  This remorse was further conveyed to Mr Healey, the psychologist, Exhibit 3, the psychological report dated 20 November 2018.

28Finally, in Exhibit M tendered today, which was a report insofar as the assessment of Mr Georghiou's appropriateness for a community corrections order, the relevant officer took the view that remorse was appropriately expressed and indeed, noted the comment made by Mr Georghiou who said to him, 'there's not a day goes by when I don't think about it'.  The next factor relied upon was that Mr Georghiou, having got to the age of 83 when this crime took place, had no priors whatsoever.  The next factor was the evidence, clear from the character references that such offending is out of character. The next factor was the impressive personal and family history, again demonstrated from all the materials and the materials put to me by Mr Crisp.

29The most significant and important proposition put to the Court was the basis for the submission by Mr Crisp, that an immediate sentence of imprisonment, in all the circumstances, despite the seriousness of this crime would be inappropriate.  That submission was supported firstly by Exhibit 2, which was the letter from the general practitioner Dr Walker.

30Again, without going into this very detailed report tendered to the Court, suffice to summarise, Dr Walker says that Mr Georghiou's degree of medication is the most of any patient he treats.  It details the multiple medical problems and incidents that he has had in recent times and also in particular, since this accident occurred.  The particular matters since the accident are the heart failure that he has endured, and the cerebral infarction.

31The doctor concluded in his report, which was exhibited with all of the medical material in Exhibit 2, that any term of imprisonment would be detrimental to
Mr Georghiou's health.  That of course is a relative matter. It might be said that any term of imprisonment to anyone is detrimental to one's health.  However, the particular point made here and the view, as I take it from Dr Walker, is because of the chronicity, not only of the number of conditions, but the type of Mr Georghiou's health, it would be particularly detrimental for him to be in prison.

32It seems to me that that conclusion is fully supported by the further hospital material tendered by Mr Crisp, which was the ‑ ‑ ‑

33MR CRISP:  I hesitate to interrupt, Your Honour, ‑ ‑ ‑

34HIS HONOUR:  Yes.

35MR CRISP:  ‑ ‑ ‑ but apparently my client's drawing attention to me.

36HIS HONOUR:  He is having it.

37MR CRISP:  Yes.  Could I just approach him for a moment?

38HIS HONOUR:  Yes.

39MR CRISP:  Thank you.

40HIS HONOUR:  It sounds like he is not doing too well. 

41MR CRISP:  We can proceed at the moment, Your Honour.  He was having some chest pain.

42HIS HONOUR:  I am not going to be too much longer.

43MR CRISP:  No, I told him that.  I asked him to ‑ ‑ ‑

44HIS HONOUR:  Very well.

45MR CRISP:  ‑ ‑ ‑ persevere.  Thank you.

46HIS HONOUR:  As I say, the hospital discharge material, in particular, the most recent admission in February of this year confirms the comments made by
Dr Walker.  And the final matter of course relied upon is the positive report set out in Exhibit M from the Community Corrections Authorities. 

47As the learned prosecutor put, the unique factors here are such that not only is the Court dealing with a person of old age, but one with extremely bad ill-health.  In that regard, the learned prosecutor referred me to the sentencing materials held by the Judicial College, and in particular, the printed materials and the manual, in particular to paragraph 10.8.5, which confirms the matters that I have referred to.

48Despite the ascending role objective gravity plays as to weight to be given to advanced age and ill health, as detailed in R S J v The Queen [2012] VSCA 148, I am persuaded that the submission of Mr Crisp in these particular exceptional circumstances should be accepted, and that a community corrections order should be granted in this particular case. Mr Crisp, your client of course has to accept that.

49MR CRISP:  Yes.

50HIS HONOUR:  He has indicated in the report that he would.

51MR CRISP:  I have explained that to him, Your Honour, yes.

52HIS HONOUR:  The term that I would impose is one of three years.

53MR CRISP:  Yes.

54HIS HONOUR:  The condition to be imposed is the condition that he seek further assistance by way of mental health, the 48(d)(3)(e) and I would also impose in addition, simply as a measure of further punishment in this matter, a fine of $10,000.  It seems to me in those circumstances, you should seek formal acceptance from your client, he is prepared to enter into that matter and is accepting of the fine.

55MR CRISP:  Yes, I will approach him.  Thank you.

56HIS HONOUR:  Mr Crisp, I am prepared of course to grant a stay in regard to the fine.

57MR CRISP:  Thank you.  If Your Honour would fix a reasonable period in the circumstances.

58HIS HONOUR:  Yes, well I was going to suggest twelve months and if there was any issue thereafter, that such application be made with the court.

59MR CRISP:  Thank you, Your Honour.

60HIS HONOUR:  Yes, I am required to also impose a cancelation of
Mr Georghiou's licence under s.89(2) of the Sentencing Act.  I think it is of not great consequence in the circumstances, given his health, however I must formally do that.  I understand the prosecution wish to apply for a 464ZF ‑ ‑ ‑

61MR CRISP:  That is consented to.

62HIS HONOUR:  ‑ ‑ ‑ certification.  I do not, Mr Prosecutor, see there is any need for that in this case.

63MR D'ARCY:  If it please, Your Honour.

64HIS HONOUR:  I am quite satisfied, given Mr Georghiou's background, that this is a one and only time the Court will ever have to deal with him.

65MR D'ARCY:  I understand, Your Honour.

66HIS HONOUR:  Yes.

67MR D'ARCY:  Your Honour, I understand that the disqualification period to be eighteen months.

68HIS HONOUR:  Now I thought it was - that is a minimum eighteen months is it not?

69MR D'ARCY:  That's right, Your Honour.

70HIS HONOUR:  Yes.  I was not quite certain from the section, so I thought I would do two years and then we - depends on which section it fits in does it not?

71MR D'ARCY:  In 89(2)(a) I understand.

72HIS HONOUR:  Well I will say two years then.

73MR D'ARCY:  If it please, Your Honour.

74HIS HONOUR:  Mr Crisp, you have explained those matters, your client is accepting of that matter?

75MR CRISP:  Yes, Your Honour.

76HIS HONOUR:  Very well, we'll prepare the documents.  Finally, of course, can I thank the very talented Auslan interpreters for their assistance in this matter.

77MR D'ARCY:  And would Your Honour fix a sentence under s.6AAA?

78HIS HONOUR:  Yes.  I also declare, pursuant to s.6AAA that had Mr Georghiou not pleaded guilty, the period of imprisonment that I would have otherwise imposed would be a period of four years, with a minimum of two years to serve.  I do not think it is necessary for me to explain Parliament's view in that matter.  You will do that Mr Crisp?

79MR CRISP:  I will.

80HIS HONOUR:  Thank you.  Yes, can I thank both counsel and instructors for their assistance in this matter and as I say again, the Auslan organisation and the very skilled operators, thank you very much.  And can I thank all family members for their assistance as well. 

81MR D'ARCY:  Thank you, Your Honour.

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