Director of Public Prosecutions v Gouraros, Perry

[2013] VCC 154

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

AT MELBOURNE

CRIMINAL DIVISION

AP 12-2616 & AP 12-2617

DIRECTOR OF PUBLIC PROSECUTIONS

v

PERRY GOURAROS

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JUDGE:	His Honour Judge McInerney
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2013
DATE OF SENTENCE:	12 February 2013
CASE MAY BE CITED AS:	DPP v Gouraros, Perry
MEDIUM NEUTRAL CITATION:	[2013] VCC 154

REASONS FOR SENTENCE

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Catchwords: Criminal law – appeal – sentence – breach of suspended sentence – driving offences – history of driving offences – no exceptional circumstances – sentence reinstated –  aggregate period of 3 months imprisonment

Cases: R v. Steggall [2005] VSCA 278 – R v. Ioannou [2007] VSCA 277 – R v. Ienco [2008] VSCA 17 – R v.Verdins [2007] VSCA 102 – DPP v. Moore [2009] VSCA 264

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Hoare	Office of Public Prosecutions
For the Accused	Mr E. Taghdir

HIS HONOUR:

1       On 22 November 2012, the appellant in this matter, Mr Perry Gouraros, was convicted in the Heidelberg Magistrates' Court of a breach of suspended sentence. 

2       The breaching offences were two driving offences, one committed in September 2011 of driving while disqualified, to which he pleaded guilty and was sentenced to a period of imprisonment of two months;  a second offence committed in December 2011 of driving while licence suspended.  

3       Apparently the suspension came about as an automatic suspension because he was caught driving over forty kilometres above the speed limit, and again, he drove without such authorisation. 

4       Those were the two breaching offences and for the second offence, he was also sentenced to a period of imprisonment of two months. 

5       Those offences re-activated an earlier sentence of imprisonment imposed and which had been suspended.  That was for two offences, an assault of which the appellant had been given one month's gaol, and another offence of drive without authorisation, for which he had been given a sentence of two months' gaol.  An aggregate period of three months was imposed.  Such sentence was suspended for a period of twelve months upon the usual conditions.  It is to be noted that his licence was cancelled for a period of six months. 

6       Formally, the Court sets aside the orders made below, as this is a hearing de-novo. 

7 As to the breaching offences concerned, both the drive while disqualified and drive while suspended, clearly, on the history presented to the Court, the appellant has a most unsavoury record. He therefore, under the provisions of s.30(1) of the Road Safety Act 1986, comes up for sentence in regard to both of the breaching offences, facing a maximum penalty, imposed by Parliament, for persons who commit such offences, of two years.

8       Given the history and given the circumstances, it can only be seen that the ultimate sentence passed by the Magistrate, that is in total a maximum of three months' gaol, in the sense that she allowed, by her sentence, the two sentences for the breaching offences to be served concurrently, for the breach of suspended sentence, the restored sentence, making a total period of imprisonment of three months.  It seems to me on any reasoning, given the seriousness of those crimes, that was a merciful sentence.  I say that because as Mr Gouraros' counsel acknowledged, after perusing his client's record, there are at least six priors, for like offences. 

9       As I say, during the period of his age from nineteen through to thirty-one and thirty-two, his driving record can only be described as appalling.

10      Before this Court, Mr Taghdir submits, however, that given self realisation, his current maturity, his desire to pursue his employment, look after his children and his step-children, maintain his current work and the particular circumstances of the case, that Mr Gouraros seeks a Community Corrections Order which would give him a last chance and enable him to seek treatment. 

11      Insofar as these crimes are concerned, it is important to remember that the appellant is in a situation where, unless he establishes exceptional circumstances which are relevant from the time he was sentenced to the suspended offence, then in such circumstances he must serve the penalty originally imposed, where he breaches.  And that breach in this case is admitted, being two offences which each carry sentences of imprisonment. 

12      The original analysis as to the meaning of "suspended sentence" or one of them in more recent times was a determination by the Court of Appeal in R v. Steggall [2005] VSCA 278. I had a close knowledge of that case as I was the Judge involved. In that instance, I determined exceptional circumstances were not shown given the test, and the matter went to the Court of Appeal which upheld such determination.

13      Subsequent to that time, there was a further consideration by the Court of Appeal as to the meaning of exceptional circumstances and the view expressed in Steggall by, in particular, Nettle JA was refined by the Court of Appeal.  Exceptional circumstances is explained, see R v. Ioannou [2007] VSCA 277 at [17], as follows:

"… the clear legislative intent implied in the use of the term "exception" is that the circumstances which would justify a departure from the strong expectation that an individual who has been permitted to remain in the community under such an order and has breached it by the commission of further criminal offences, will have the sentence restored and therefore it must be clearly unusual or quite special or distinctly out of the ordinary to qualify under the term "exceptional".  

Redlich JA went on to say:

"As these expressions indicate, the circumstances cannot fall within a range of normally anticipated consequences, behaviours or exigencies.  Steggall is not authority for the proposition that circumstances can only be exceptional if they are beyond reasonable exception or contemplation."

That analysis was ultimately accepted by Nettle JA in R v. Ienco [2008] VSCA 17.

14      So that is the situation faced by the appellant in this case, the clear legislative intent of Parliament. 

15      The proposition put by counsel on behalf of the appellant to support the establishment of exceptional circumstances revolves around my acceptance of the fact that at the time of the commission of the breaching offences, and indeed it seems to me that the argument essentially goes to the circumstances for many, many years.

16      The argument is that because of the principles in R v.Verdins [2007] VSCA 102, that I should conclude, as this argument has not been expressed before and a view that was not before the Magistrates' Court because there was no such evidence, that the behaviour was such that because of the mental condition of the appellant, his ability to exercise appropriate judgment or make clear and rational choices was affected to the degree that I should ameliorate the culpability in regard to the breaching offences.

17      If I came to that determination, in all the circumstances essentially, as I understand the proposition, this Court, as against the Court below, now having the ability to attach to the admitted criminality of the appellant, the principles of Verdins would be led by way of the reduction of culpability to determine in all the circumstances that it would be inappropriate to sentence the appellant to gaol.

18      Fundamental, of course, to that acceptance, is that there is a causal link as set out in DPP v. Moore [2009] VSCA 264. The Court said in regard to the applicability of Verdins:

"… it does require an analysis by a sentencing judge based on evidence of the variety of issues and consequences of impaired mental functioning.  It may be that the effect of the particular impaired mental functioning is relatively minimal either as to the circumstances of the commission of an offence and the moral culpability of the offender or it's likely effect on the offender when serving his or her sentence.

On the other hand, it may be identified as lying at the root cause of the conduct."

The proposition put by counsel is that I should find that this condition - and I will come to the condition in due course - was the root cause of the criminal conduct over many years of his client.

19      The Court, at [51], went on to say:

"If either general or specific deterrence is to be moderated, then the nature and severity of the symptoms and their effect on the mental capacity of the person being sentenced must be evaluated."

20      That brings me to the first question:  do I accept that there has been established before me the propositions fundamental to Verdins, that the appellant was suffering, at the time of the commission of these offences, from a mixed anxiety and depressive disorder insofar as it has been put by Mr Ian McKinnon, forensic and consultant psychologist, see Exhibit 1.

21      Exhibit 2, in support of the application is the report, as I would understand it, of the general practitioner, Dr Alex Cogsolou.  The general practitioner, despite what was put to me, makes no reference to any history of depression.  He does, however, make reference to a long history of substance abuse and smoking cannabis on a regular basis. 

22      Dr Cogsolou notes that insofar as Mr Gouraros’ current position, he has no paranoid ideation or delusional thoughts, he is not suicidal.  He has a (indistinct) and low mood, he is motivated and has a full time job.  Dr Cogsolou also notes that he is trying to have access rights to his children, his insight is normal, he is of average intelligence.  It seems to me appropriately, the general practitioner says "I believe the thought of going to gaol has frightened him out of his wits."

23      Dr Cogsolou goes on to say in support of the proposition that Mr Gouraros clearly has a conduct disorder and most offences were probably done under the influence of drugs. He is remorseful and unlikely to offend.

24      Mr McKinnon, forensic and consultant psychologist, saw the appellant on 14 January 2013. Firstly as to the current clinical summary as described by the appellant at p.4 of Exhibit 1, "Mr Gouraros stated or appeared to be suffering from symptoms that met the clinical criteria for a mixed anxiety and depressive disorder of moderate strength.  He stated 'the issue is with my kids, it's taken over my life.  That, and going to gaol.  I smoke cigarettes all the time, so much rushing through my head, I think I'll go insane.'"

25      Further, Mr McKinnon noted that under testing it is suggested he had been significantly psychologically distressed during the thirty days prior to the assessment, which appears to be subsequent to the sentence. 

26      Mr McKinnon concludes that Mr Gouraros appears to have suffered or long suffered chronic internal distress because of issues going to his upbringing and finally states, by way of his opinion on p.5 of Exhibit 1, "That at the time of the current offences, Mr Gouraros was probably suffering from symptoms that met the clinical criteria for the following major diagnosable and psychological disorder." 

27      Mr McKinnon further said that they would have made a significant contribution and exacerbated his already propensity for emotional lability and volatility, degraded his impulse control and affected his ability to reason and make sound judgments. 

28      It is also significant that Mr Gouraros acknowledged that he could not provide any reasonable justification for his driving offences, but he added that he had driven a motor vehicle under the pressure of work commitments and had significant pressure as a result of conflict with the mother of his children. 

29      Again, Mr McKinnon made the comment "While these psychological disorders probably contributed to his offending to some degree, they do not fully account for Mr Gouraros' extensive history of road safety offences."

30      In the sense of the requirement for a causal connection of the Verdins principles, I do not accept the evidence before me establishes that connection.

31      I am not necessarily saying that Mr Gouraros has not suffered the condition as shown, however, I am not satisfied that the conditions was such as to impact in any way upon his criminality.  What goes very strongly against such a conclusion is not only that he has never been treated by his GP for any such condition, not only was the conditions discovered subsequent to this gaol offence, but the long-standing nature of the prior offences stands as a practical demonstration that the cause for this is simply a determination to act in an unlawful manner rather than any impact or inability to reason being caused by this issue.

32      I therefore reject the Verdins connection. 

33      Accepting however that there is a condition and that it may well have been long-standing, is there anything about that which creates exceptional circumstances in the sense required by Ioannou? Clearly it seems to me, given the test involved, there can be no such circumstance established by that condition, even if it did apply.  In those circumstances, I would reject the propositions put by counsel on behalf of Mr Gouraros.

34      The question is what do I do with your client now.  As I said, it seems to me that the sentence below was a very generous disposition.  However, in the circumstances, as I have not given you any warning that I might increase the sentence, I am not prepared to take any steps but reimpose the orders below, that might be something in your client's favour or you may call it luck.

35      Mr Gouraros, you are thirty-three?

36      PRISONER:  Yes, Your Honour.

37      HIS HONOUR:  This behaviour has to cease.  It is the first time, after many offences that you have had to suffer the severe consequences that the law imposes.  I would hope that is the end of behaviour like that for you.  It is an horrific record that you have.  You have family here supporting you, you have disappointed everyone.  You have your own children and there is no one else to blame but your stubborn desire not to comply with the law. 

38      I see no basis whatsoever to do anything else but reimpose the sentence that was imposed upon you - or impose the sentence that was imposed upon you.  As I say to you, in the circumstances, it may well have been that it could have been seen as totally merciful and that appropriate sentence would be much more than a sentence that you have got.

39      However, I bear in mind that until these offences, you had never had a criminal offence.  I also bear in mind that there seemed to be a lengthy period from the assault occurring to your plea, somewhere between three years. 

40      However, against that is your continual breach of the law and, in those circumstances, I cannot see that the order imposed below and the order that I am going to impose is anything else but absolutely just as far as your behaviour is concerned.

41      Mr Prosecutor, is there anything else I need to do?

42      COUNSEL:  No, Your Honour.

43      HIS HONOUR:  The end result of that is that the three months will be imposed on you.  Take the prisoner away please.

44      My associate raised 6AAA, I don't think it arises in this instance, does it?

45      COUNSEL:  Your Honour, the magistrate did make the 6AAA order, you could make the order but it wouldn't - - -

46      HIS HONOUR:  I will make the same, what was the order there?

47      COUNSEL:  It would have been four months, instead of two months.

48      HIS HONOUR:  Very well, I will make the same order.

49      COUNSEL:  Yes, Your Honour.

50      HIS HONOUR:  Stand down

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