Director of Public Prosecutions v Papachristodoulou
[2017] VCC 216
•10 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-01758
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERIC PAPACHRISTODOULOU |
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| JUDGE: | HER HONOUR JUDGE CAMPTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 February 2017 |
| DATE OF SENTENCE: | 10 March 2017 |
| CASE MAY BE CITED AS: | DPP v Papachristodoulou |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 216 |
REASONS FOR SENTENCE
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Subject: Negligently causing serious injury – reckless conduct endangering persons
Catchwords: Fishtailing – speed
Legislation Cited:
Cases Cited: Harrison & Rigogiannis v The Queen [2015] VSCA 349
Sentence:4 years and 9 months imprisonment; 2 years and 9 month non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Regan | |
| For the Accused | Mr S. Anger |
HER HONOUR:
Charges
1Eric Papachristodoulou, you have pleaded guilty to two charges of negligently causing serious injury and one charge of reckless conduct endangering persons. The maximum penalty for negligently causing serious injury is ten years' imprisonment and the maximum penalty for reckless conduct endangering serious injury is five years' imprisonment.
Circumstances of Offending
2On 31 October 2015, you were driving your father's Holden ute in Doncaster Road when you were involved in a motor car collision. As a result of excessive speed and fishtailing, your vehicle collided with another vehicle driven by Jason Huang. Both Mr Huang and his wife Ching Ru Chao, who was a passenger in the other vehicle suffered serious injury due to your negligent driving. At the time of the collision, the road was wet but it was not raining and the traffic flow was moderate.
3The prosecution case is that prior to the collision in Doncaster Road, you were driving south on Blackburn Road where you deliberately caused the back end of your Holden ute to drift from side to side and fishtail, causing the tyres to spin on the surface of the road as you did so. At the time you were in the left hand lane of the two southbound lanes. The small swings would cause the back end of the Holden ute to cross the boundary line of that lane. The swings were small and largely controlled and after each one, you straightened the vehicle.
4The prosecution relied on the evidence of an independent witness, Anthony McDonald, who gave evidence that when he was travelling behind you in Blackburn Road, he observed your vehicle fishtailing like this on three occasions. Mr McDonald described your vehicle as drifting from side to side and swinging out of its lane. He said he had his window down slightly and he could hear the wheels of your vehicle spinning and the engine revving. There were no vehicles between his vehicle and yours.
5The first occasion he observed your vehicle fishtailing on Blackburn Road was near to Canopus Drive when he was approximately a hundred to a couple of a hundred metres behind you. The second occasion was near to Nonda Avenue and third occasion was just before Leura Street. On these occasions, Mr McDonald was approximately 80 to 100 metres behind you.
6When he was cross-examined, Mr McDonald denied that there were any cars between your vehicle and his vehicle and he denied that he had been too far away to observe it fishtailing. Mr McDonald also denied that he was confused and had mixed up his observations of your vehicle fishtailing at Blackburn Road with the later incidents of fishtailing in Doncaster Road.
7You denied fishtailing when you were travelling south on Blackburn Road. You relied on the evidence of your passenger, Bobby Michalopoulos, who in examination-in-chief denied that any fishtailing took place on Blackburn Road. However, Bobby also said that he was on his mobile phone and not paying attention to the road. Also when he was cross-examined as to whether any fishtailing took place in Blackburn Road, he said he could not remember it taking place.
8I am satisfied beyond reasonable doubt that you caused your vehicle to fishtail on three separate occasions when you were driving south on Blackburn Road. I accept the evidence of Mr McDonald who was a straightforward and convincing witness. I accept his evidence that there were no cars between your respective vehicles and that he was close enough to observe the actions of your vehicle. In addition, I accept that his window was a bit open and he could hear the sound of your vehicle's wheels spinning and the sound of your exhaust. In accepting Mr McDonald's evidence, I have taken into account that he is an independent witness and that on returning home after the collision, he took notes of his observations of your driving on that day.
9With respect to the evidence of Bobby Michalopoulos, he was not helpful to your case. He gave evidence that he was a long-time friend of yours and that you grew up together. At worst, I suspect that his friendship has affected his memory with respect to your driving on Blackburn Road on the day of the collision. At best, I suspect that he was concentrating on his mobile phone and he simply does not remember accurately.
10Moving on to what happened on Doncaster Road, the prosecution case is that Doncaster Road has three lanes in each direction. You turned left and drove east in the middle lane and again deliberately fishtailed the vehicle as you drove towards the crest of the hill. The back end of the vehicle swung out across all three lanes. You performed five more swings as you approached the crest. Each swing put your vehicle on a 45 degree angle to the direction you were travelling in. You revved the engine on each swing to control the vehicle.
11However as a result of fishtailing over the crest, you lost control of the vehicle. The vehicle slid across the eastbound lanes over the median strip and into the closest westbound lane directly into the path of the vehicle driven by Mr Huang. The front passenger side of the Holden ute struck the front driver side of Mr Huang's vehicle with the force of the impact pushing it backwards and causing the significant damage to both vehicles. A third vehicle lightly collided with the back of Mr Huang's vehicle, however it caused minimal damage and the driver was uninjured.
12Bystanders assisted in removing Mr Huang and his wife from their vehicle and you and your passenger also provided assistance. Investigations carried out after the collision revealed that 2.5 seconds before the impact, the Holden ute was travelling at 105 kilometres per hour. The applicable speed limit was 70 kilometres per hour. You had applied the brakes in an attempt to stop the vehicle which skidded for at least 22 metres, reducing the speed of the vehicle to 59 kilometres at the point of impact.
13On Sunday 6 March 2016, you attended at the Forest Hill police station. You were arrested and participated in a record of interview. You denied fishtailing at Blackburn Road and Doncaster Road. You claimed the collision happened when you had been changing gears and that you hit a wet patch or something.
Injuries
14As a result of the collision, Chin Ru Chao sustained very extensive injuries including:
·a spinal fracture;
·rib fractures;
·extensive bruising and bleeding into her abdomen;
·swelling within the liver;
·a small perforation and tear in her bowel which was considered potentially life-threatening;
·a completely torn abdominal muscle from the insertion to the pubic bone;
·a significant bruising to her chest and memory loss in relation to the collision.
15She underwent an emergency laparotomy and small bowel resection at the Box Hill Hospital and an L4-5 fusion at the Austin Hospital. While the medical reports from the Austin Health reveal that Chin Ru Chao has generally made a good recovery from her injuries, she had to undergo two operations and spent approximately four weeks in hospital.
16Her victim impact statement reveals that she regularly experiences tiredness and has difficulty standing for prolonged periods. She experiences back pain and cannot lift to carry the weight she normally did before the accident. She had planned to work in childcare prior to the collision but this will no longer be an option due to the injuries she sustained.
17Mr Huang spent overnight in the hospital. His injuries involved spinal and rib fractures, bruising and memory loss in relation with the collision. He had three weeks off work and suffers from limited movement and recurrent left chest pain. He also had to take sick leave from his employment to look after his wife and children.
Personal Circumstances
18Your personal circumstances were contained in a report from Pamela Matthews dated 9 October 2016. You were born on 28 January 1991 and grew up in Donvale. Your father does labouring work on commercial building sites and until recently your mother worked part-time in retail. You have two sisters. You had a happy childhood and there was no developmental exposure to domestic violence or substance abuse or child abuse. There were no behavioural issues at school. You left at the end of Year 10 to begin a plumbing apprenticeship. You successfully completed this apprenticeship and added roof plumbing as an additional qualification. You have been employed with Acrobat Roofing for the last nine years and you have also started your own plumbing business working at the weekends.
19With respect to your driving record, you have one traffic infringement notice in 2009 for exceeding the speed limit by 45 kilometres or more for which your licence was suspended for 12 months. Other than this, you have no prior criminal record. You do not use illicit drugs. You rarely drink alcohol, only for special birthdays. You have no history of mental health issues. However Ms Matthews assessed you as currently suffering from low-level post-traumatic symptomology in relation to the collision and the consequence of your behaviour.
20Given your background and history of stable work since leaving school, it was not surprising that Ms Matthews reported that you did not present with any serious personality, behaviour or social issues and that your risk of reoffending was very low. In her opinion, the factor contributing most to your offending behaviour was your youth. In this respect, she reported that “adolescent stage of development does not end at 18 years but rather developmental brain research would indicate that this stage extends into the mid-20s. While you are now 25, you remain in the late stage of adolescence as you have yet to achieve emotional independence from family and yet to achieve the developmentals of a stable, mature psychosexual relationship.”
21Ms Matthews reported that you accepted responsibility for the collision and the effect on the occupants of the other car. With respect to a sentencing disposition, she was of the view that a period of imprisonment without the support of your family was likely to send you into a downward spiral and that your current symptoms of post-traumatic stress disorder were likely to worsen. She considered that your time in custody would be more onerous for you because of this and that in addition, your youth and lack of world experience would make you socially and emotionally more vulnerable. From a rehabilitative perspective, she considered that a community corrections order was an appropriate disposition.
Defence Submissions
22In his plea on your behalf, your counsel informed the court that you accepted responsibility for the collision and the injuries caused to the occupants of the other car. He said that you'd been overwhelmed with remorse for causing the collision and the injuries to the occupants of the other car. He said that after the collision you immediately assisted them and accompanied them until the ambulance arrived. He said that the collision caused you to feel pain for several months and to urinate blood. It was submitted that you had been negligent to a high degree but that your offending was not at the top end for negligently causing injury by driving. This was because it had not involved drugs and alcohol, and also that while Mr Huang and his wife suffered serious injury, their injuries were not in the worst category.
23In submitting that a community corrections order was within range your counsel relied upon the following matters:
·you had pleaded guilty at the earliest opportunity and expressed genuine remorse;
·you were a relatively young offender, being 24 at the time of the offending;
·you were otherwise of good character with a history of stable and consistent employment; and
·you had a supportive family and you have completed a defensive driving course. Your prospects of rehabilitation were excellent.
24With respect to your previous good character, your counsel tendered a character reference from your boss, Peter Argyrou, who had known you for nine years. In his reference he described you as being reliable and professional, with an ethical attitude towards work and clients. Most importantly, he said that you had expressed remorse for your thoughtless and immature behaviour. There was also a character reference from Paul Seymour who had known you for approximately ten years, and Adam Fiore who has known you for quite a few years. Mr Seymour described your offending as uncharacteristic. He said you had always demonstrated an extremely high degree of loyalty and respect for your family, peers and the community in general. You expressed intense regret and embarrassment for your offending. Mr Feuer also said that you had shown great remorse for your actions.
25In a letter to the court, you said:
"I cannot put into words the deep remorse I feel toward those who I've injured. I wish the impact of my actions upon no one else and I only hope that I can use my situation as an example to help others to understand. I wish it had never happened and that I had behaved like a sensible road user."
26Your mother was called to give evidence and she confirmed that you felt remorseful that you had put someone else in hospital. She said you have become anxious, you were not socialising with your friends, and you were spending more time with your family. She said that your family had paid for the damages to the vehicles involved in the collision.
Prosecution Submissions
27The prosecutor referred the court to a recent decision of the Court of Appeal, Harrison v The Queen[1] where the court said in paragraph 12 that:
"We have reviewed sentencing practices for negligently causing serious injury by driving both before and after the increase of the maximum penalty for this offence to ten years. We have concluded that current sentencing practices at the upper end of seriousness are inadequate and need to be uplifted. Inevitably, such change will have a flow-on effect in sentencing for mid-range and low-range instances of negligently causing serious injury by driving."
[1]Harrison & Rigogiannis v The Queen [2015] VSCA 349
28The prosecutor accepted that given the absence of drugs and/or alcohol and the nature of the injuries caused to Mr Huang and his wife, your driving was not at the upper end of seriousness for the offence of negligently causing serious injury. However, it was submitted that your driving was such that it was in the higher end of the mid-range and that a community corrections order was not within sentencing range. It was submitted that you had deliberately caused your vehicle to fishtail on Blackburn Road. You continued to do so in Doncaster Road and that the collision occurred because you lost control of your vehicle because of fishtailing and driving in excess of the speed limit.
Sentencing Remarks
29In sentencing you, I have taken into account all the mitigating matters referred to by your counsel. I have given you a discount for your plea of guilty and I accept that you are genuinely remorseful for your negligent driving on the day of the collision. I also accept that you are otherwise a young man of good character and that you have excellent prospects of rehabilitation. I accept Ms Matthews' opinion that a period of imprisonment is likely to worsen your mild post-traumatic stress syndromes and I accept that your youth and lack of world experience will make you socially and emotionally vulnerable in this context. I accept and I have taken this into account.
30However in all of the circumstances of your case, I do not consider that a community corrections order is an appropriate sentencing disposition. In Harrison's case at p.130, the Court of Appeal said:
"It may very well be that some instances of negligently causing serious injury by driving in lower categories of seriousness may appropriately be dealt with by an imposition of a community corrections order or a combination of a community corrections order with a term of imprisonment of up to two years, but the likelihood that a community corrections order alone or a combination sentence will be appropriately necessarily diminishes as a degree of negligence and seriousness of the injuries increase. As the court recognised in Boulton, a point will be reached at which such a sentencing option ceases to be capable of satisfying the sentencing purposes of punishment, denunciation and deterrence."
31This is such a case. Unfortunately offences of negligently causing serious injury are often committed by young offenders of otherwise good character who have limited criminal history or none at all. It is not uncommon for them to have good prospects of rehabilitation. General deterrence is an important sentencing consideration in a case such as this. Other young men must be deterred from fishtailing their vehicles and driving at an excessive speed.
32Your driving is a serious example of offending at the high end of the mid-range of negligently causing serious injury by driving. Your driving involved conduct which was intentional and prolonged. You engaged in fishtailing your vehicle in Blackburn Road and as you approached the crest of the hill in Doncaster Road. Your negligent driving caused you to lose control of your vehicle and your excessive speed did not assist matters. Your driving presented a considerable departure from the standard of care of a reasonable person. Your actions caused injuries to Mr Huang and Chin Ru Chao, and particularly the injuries to Chin Ru Chao were serious. She had to undergo two operations and spent considerable time at a hospital and she still suffers from pain and fatigue.
Sentence
33Will you please stand up.
34On the charge of negligently causing serious injury to Chin Ru Zhao, you are sentenced to three years and nine months.
35On the charge of negligently causing serious injury to Jason Hung, you are sentenced to three years.
36On the charge of reckless conduct endangering a person, you are sentenced to 12 months.
37The base sentence is the sentence of three years and nine months on Count 1. I cumulate nine months of the sentence on Count 2 on Count 1, and three months of the sentence on Count 3 on Count 1. This means that the head sentence is four years and nine months and I fix a non-parole period of two years and nine months. You may sit down.
38But for your plea of guilty, I would have sentenced you to six years and nine months to serve four years and six months.
39I am obliged to cancel your licence. It is cancelled for a period of two years and you are disqualified from obtaining another licence for that period.
40Is there anything?
41MR MANNING: Your Honour, there was also an application for a 464ZF order. I'm not sure if ‑ ‑ ‑
42HER HONOUR: No, I don't think it's appropriate in this case. He is of otherwise good character, I don't think he should have his DNA on the database.
43MR MANNING: As Your Honour pleases.
44HER HONOUR: Yes, thank you.
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