Director of Public Prosecutions v Papagelou

[2021] VCC 411

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted

Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 21-00008

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN PAPAGELOU

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2021
DATE OF SENTENCE:	12 April 2021
CASE MAY BE CITED AS:	DPP v Papagelou
MEDIUM NEUTRAL CITATION:	[2021] VCC 411

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW Catchwords:

Legislation Cited: s.89C(1) of the Sentencing Act 1991; s.18 of the

Sentencing Act 1991; s.87P of the Sentencing Act 1991

Cases Cited:DPP V Neethling [2009] VSCA 116; Stephens v The Queen [2016] VSCA 121; Oates [2007] VSCA 59; DPP v

Weybury [2018] VSCA 120; DPP v DJK [2003] VSCA 10; R

v Verdins & Ors [2007] VSCA 102; Spanjol v The Queen [2016] VSCA 317 Guseli v The Queen 2019 VSCA 29

Sentence:4 years imprisonment with a minimum non-parole period of 2 years

Section 6AAA Declaration          5 years and 6 months imprisonment with a minimum non-

parole period of 3 years and 4 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	Office of Public Prosecution
For the Accused	Mr P. Morrissey	Theo Magazis & Associates

HIS HONOUR:

1Stephen Papagelou, on Sunday 18 November 2018, at approximately 8.52 pm, you were driving your Mercedes motor vehicle south along Chapel Street in Prahran when just before the intersection of Chapel Street and Daly Street, you struck and killed Mr Henry Ekselman who was crossing the road at this intersection. Arising from this incident, you have pleaded guilty to a charge of dangerous driving causing death which carries a maximum penalty of 10 years' imprisonment.

2The circumstances of this offence are set out in the prosecution opening, which was read in open court and tendered as an exhibit on the plea.

3Henry Ekselman was 73 years old at the time of his death. He lived in South Yarra with his wife Keryn. He was the father to four adult children, Ginger, Will, Jake (deceased) and Cherry, and a stepfather to Ms Emma Westwood. He was a much-loved person in the community as set out in the many victim impact statements read to the court by his family and his friends.

4At the time of Mr Ekselman's death you were 27 years of age. You are now 29 years old. You held a full and current Victorian driver's licence. You were driving a 2018 silver Mercedes Benz GLE250d station wagon, which you had purchased four days before this collision.

The collision scene

5Chapel Street at the collision location has two lanes in each direction, running north and south. The centre-lane is shared by tram tracks and at the outer edge of these lanes, adjacent to the kerb, is a marked bicycle lane. The speed limit is 40 kph reflecting the high volume of pedestrian traffic in this high-density residential area.

6The intersection of Chapel Street and Daly Street is controlled by traffic lights in each direction, with pedestrian signals operating in all four directions. Each

pedestrian crossing is marked on the roadway by parallel white lines north of the collision location. Beyond the Yarra River, Chapel Street changes name to Church Street.

Circumstances

7At around 5.17 pm, you went to the Prince Alfred Hotel in Church Street, Richmond, with your wife, Marina and friends, Christopher Kalogiannis, Jessica Hadjifotis, Bianca Ioannou and Leila Avini. CCTV from the hotel shows that you drank three shots of alcoholic spirits and three mixed drinks over two and a half hours.

8At 7.57 pm, you and your friends left the Prince Alfred Hotel and walked to Baby Pizza, a restaurant, also in Church Street, a short distance away. There, your group ate pizzas and shared a bottle of wine. Ms Avini recalls that before leaving, you quickly drank your last glass of wine.

9At 8.42 pm, you left Baby Pizza to collect your car, returning about five minutes later. Ms Avini, who had been waiting outside Baby Pizza with Ms Giosmas and Ms Ioannou, sat in the front passenger seat of your car. She said to you that you should not be driving because you had been drinking alcohol. Feeling unsafe, she tried to get out of the car, but you held her forearm and inched your car forward, obliging her to close the door. You then drove off with Ms Avini in the front seat, and Ms Giosmas and Ms Ioannou in the rear seats.

10At the intersection with Alexandra Avenue, you stopped in the right-hand lane at a red light. Mr Kalogiannis stopped next to you and drove off when the lights turned green. You were delayed behind other traffic and you were unable to move through the intersection on this cycle. When lights turned green, you accelerated to catch up to Mr Kalogiannis.

11Surveillance camera footage from various locations along Chapel Street, which I have viewed, show your vehicle travelling faster than the surrounding traffic

as you tried to catch up to Mr Kalogiannis’ vehicle. As you approached the intersection with Daly Street, Mr Kalogiannis ahead of you entered the intersection just as the traffic signal was changing to amber.

12Mr Ekselman, by this time, had commenced crossing Chapel Street, from west to east, against a red pedestrian signal. Mr Yuchuan Huang was driving behind Mr Kalogiannis. He began to slow down because the lights were changing and because Mr Ekselman was crossing the road in front of him.

13Instead of slowing down, you moved to the left side of the road and accelerated around Mr Huang's vehicle heading into the intersection, just as the traffic signal was changing from amber to red. You saw Mr Ekselman at the last moment, too late, and steered to the right in an attempt to avoid hitting him; however, you were unable to avoid impact and the front left area of your car hit Mr Ekselman who was propelled 15 metres forward, knocking him unconscious and causing his fatal injuries. These circumstances are clearly shown in CCTV footage which was tendered by the prosecution and which I have also watched on a number of occasions.

14A witness Mr Konstandinos Kouinis, who was 80 metres north of Daly Street and was about to cross Chapel Street, from west to east, saw your vehicle approaching quickly and decided to let it pass. He estimated your speed to be around 60 kph.

15Another witness approximately 20 metres north of Daly Street, Gregory Fairweather was sitting on a bench, on the east side of Chapel Street, with his back to the road when he heard the squeal of tyres. He turned to look at your vehicle. He said this of your driving, 'He was not trying to brake; instead he accelerated  and  then kept  going.'   Mr Fairweather then  saw your car hit   Mr Ekselman.

16On the footpath near Mr Fairweather, Matthew Jowett had stopped to readjust his grip on some shopping bags when he heard your vehicle, then felt it, as it

came close to his position on the footpath. He looked up and saw your vehicle was travelling faster than other cars and was passing two slowing vehicles on the inside. He watched as you drove into the intersection and collided with the victim. Mr Jowett ran to the victim's aid and at 8.53 pm he phoned emergency services.

17On the west side of Chapel Street, at the  intersection  with  Daly  Street,  Luke Losinno was working at the Two Wrongs Bar when he heard a car travelling fast. He looked up and saw your car overtake another car to the left, then move across to the right as it entered the intersection. Losinno heard the collision occur.

18The footage that shows the collision is taken broadly from the location of the Two Wrongs Bar.

Speed cameras

19A speed camera report was prepared by Mr Anthony Fitts, a signal services manager at VicRoads, who indicates the traffic signal for south bound traffic on Chapel Street: turned green at 8.51.43 pm, turned amber at 8.52.16 pm, and turned red at 8.52.20 pm.

20His report also provides information in relation to the pedestrian control signal at the location where the victim was crossing: the pedestrian button was pressed at 8.52.05 pm. The pedestrian light turned green at 8.52.21 pm.

21Detective Leading Senior Constable Michael Hardiman, a collision reconstruction expert, attended and examined the collision scene. Based upon his examination he calculated that your vehicle was travelling between 36 kph and 53 kph but most likely between 43 – 52 kph at impact. He postulated that these speeds will be an underestimate of the true speed of your vehicle due to the 'side swipe' style of collision.

22You pulled over 74 metres further down Chapel Street, outside The Como. You

opened the driver's door and got out. Surveillance footage from The Como shows you get out of the car. The rear seat passenger, Bianca Ioannou, got into the driver's seat, where she remained for 20 seconds before she also got out.

23At 9.00 pm, Senior Constable Brian West attended the collision scene and identified you as being the driver of the vehicle involved in the collision. He required you to take a preliminary breath test. That reading was not less than 0.0744 grams of alcohol.

24At 9.20 pm, Senior Constable West arrested you. You began to hyperventilate, and you were so distressed you required medical attention by ambulance personnel.

25You were taken to the Alfred Hospital where, at 10.25 pm, a blood sample was obtained, later analysed to be at a concentration of 0.130 grams of alcohol per 100 ml of blood.

26At 10.04 pm, at the Alfred Hospital, Mr Ekselman died from the injuries he sustained in this collision.

27A further blood sample was taken at 11 pm, with a concentration of 0.104 grams of alcohol per 100 ml of blood.

28At 1.07 am on the 19th of November 2018, you were taken to the Prahran Police Station for interview during which you made no comment, which is your legal right.

29I emphasise the alcohol reading relied on by the prosecution relating to the time of the collision in this case is 0.075 per cent.

Victim impact

30I turn now to the victim impact.

31Henry Ekselman was clearly an active, much loved and highly respected man whose life tragically ended prematurely as a result of your offending. Read into evidence were victim impact statements from his close family, his friends and others who knew him through work. There were a multitude of such statements. The statements were all eloquent expressions of the suffering which your offending has caused the friends, the family and loved ones of Mr Ekselman. The profound impact and the void occasioned by his death will continue for them well into the future.

32There is nothing that this court can say and no sentence that can be imposed that will bring back Henry Ekselman or heal your grief or pain. The sentence I must impose can  in  no  way  be  a  measure  of  the  worth  of  his  life.  As Mr Morrissey said on the plea, there can be no equivalence between his life and the sentence I impose. Rather, the sentence is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the impact on the victims. That said, the impact of his death on his family and friends is a significant matter in sentencing in a case such as this.

33In the case of the Director of Public Prosecutions v DJK [2003] VSCA 109: Vincent JA dealt with the notion of social rehabilitation in sentencing – he said this:

'It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts.

The imposition of a sentence often constitutes both a practical and ritual completion of a protracted and painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held, and which may never be removed. Indeed, from the victim's perspective and apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the

situation.'1

34It seems to me these words are apposite to this case. My sentence today is the completion of the legal process in the aftermath of Mr Ekselman's death, which has been a protracted and painful period for Mr Ekselman’s family, friends and loved ones. The recognition of the principle of social rehabilitation is a reflection of community values as a factor informing just punishment for the offence you have committed.

Sentencing principles

35The sentencing principles a court must have regard to in relation to cases of dangerous driving causing death and serious injury have been considered by the Court of Appeal in numerous cases including Neethling  [2009]  VSCA 116, Stephens v The Queen [2016] VSCA 121; Oates [2007] VSCA 59 and most recently perhaps in DPP v Weybury [2018] VSCA 120.

36It is clear from the authorities that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment except where the offender's level of moral culpability is low. Such cases have generally involved momentary inattention on the part of the driver leading to a collision causing a death or serious injury.

37In more recent times the bar has been set even higher by enactments of s.5(2H) of the Sentencing Act, which applies to category 2 offences which includes dangerous driving causing death. In this case that effectively means a prison sentence must be imposed unless substantial and compelling circumstances that are exceptional and rare are demonstrated. Mr Morrissey made a submission to the effect as set out in the defence written submissions that such circumstances were rationally capable of being established. But I think it is clear in the end that those matters do not meet the test, particularly given the

1 Director of Public Prosecutions v DJK [2003] VSCA 109, paragraph 18

restrictions in the legislation on the matters that I can have regard to. In any case, as was conceded on the plea, this is not a momentary inattention case and, in my opinion, a custodial sentence is inevitable on the facts of this matter.

38It is also clear from the authorities that the gravity of dangerous driving causing death is heavily influenced by the offender's moral culpability and the objective dangerousness of the driving. An assessment of moral culpability is a crucial component of the sentencing process in such cases.

39General deterrence is of considerable importance in sentencing for such offences.

40In the case of Neethling, the court detailed a number of non-exhaustive factual considerations relevant to the assessment of the seriousness of such offences some of which apply to the facts of this case.

Gravity

41Dangerous driving causing death is a serious offence involving the loss of an innocent human life.

42The circumstances that led to the fatal collision in this case highlight how a series of poor decisions related to the driving of a motor vehicle can result in a catastrophic outcome that irrevocably alters the course of so many lives, including yours Mr Papagelou.

43The dangerous driving relied upon by the prosecution is said to be your decision to pass the vehicle of Mr Huang on the left and accelerate through a light which was amber, turning red2. This piece of dangerous driving occurred against a context of you having consumed alcohol during an approximately three-hour period resulting in reading of 0.075 per cent. This is the reading on which the prosecution relies and upon which Dr Angela Sunghalia the prosecution expert,

2 See prosecution submissions on sentence at paragraph

a forensic physician, based her opinion. Dr Sunghalia said that she was not able to say whether the extent of impairment from alcohol would have been sufficient to prevent your 'proper control' of the motor vehicle so as to cause the collision. I do note that intoxication whilst under the influence to such an extent as to be incapable of having proper control of a motor vehicle is the test for culpable driving. This is a case of dangerous driving.

44However, Dr Sunghaila also said that one of the ways in which alcohol negatively affects driving is by causing disinhibition. Here, in my opinion disinhibition was manifest at the critical time and in the lead up driving. During his sentencing submissions, Mr Morrissey accepted the role of alcohol in the offending saying that it is rational to consider that there was an element of disinhibition to the decision to drive in the way that you did. Disinhibition arising from the consumption of alcohol was 'part and parcel' of how you came to make the decision you made to pass on the left and accelerate through the intersection to catch up to your friend.

45I accept that driving in the way that you did was out of character. Indeed, in the reference of Mr Heliotis he described your reputation as a driver as follows,

'Those who have seen Stephen drive described him as a safe, careful and considerate driver. I am aware that he has no convictions, traffic or criminal.'3

46This description of your history as a driver and your driving as out of character, which I accept, lends support to the analysis that the disinhibiting effects of the alcohol you had consumed was a contributing factor to the way you drove and the decisions you made and therefore to the ultimate outcome of your dangerous driving, the death of Mr Ekselman. Your focus as you drove along Chapel Street was to catch up to your friend Mr Kalogiannis; and the manoeuvre you engaged in that directly led to the collision was consistent with a level of

3 Character Reference of Con Heliotis dated 15 March 2021.

disinhibition in your driving.

47Mr Morrissey in his written submissions pointed out the evidence of Dr Sunghaila, that she could not say on the basis of your blood alcohol level that you were incapable of having proper control of your motor vehicle and therefore the presence of alcohol cannot be said to be causal and should not be considered an aggravating feature.

48For the reasons I have outlined, I am satisfied beyond reasonable doubt that your alcohol consumption led to disinhibited driving and made a contribution to the dangerous driving in this case. As such it is relevant to the assessment of your moral culpability in this matter. Given you had been drinking alcohol over a few hours in quantities sufficient to produce a reading over the permissible blood alcohol content, it was incumbent on you not to drive. Indeed, you had a warning from your passenger Ms Avini not to drive which you failed to heed. You should not have been driving at all and these matters are relevant to your moral culpability. Of course, the case of Neethling requires the sentencing judge to consider the extent of your intoxication and in that regard, I take into account the reading and Dr Sunghaila's analysis and opinion as to its effect.

49The manoeuvre itself whilst not executed at high speed was inherently dangerous and perilous. Chapel Street is busy road with a high volume of pedestrian traffic. Mr Huang was obviously slowing his vehicle as he approached the lights and the light had turned amber. He was also slowing because Mr Ekselman had crossed the road, but you did not know this. But you should have slowed in response to Mr Huang slowing and for the lights. Instead, you quickly pulled to the left unaware of what was ahead and decided to take on the amber light presumably to catch up to Mr Kalogiannis. In all of the circumstances, even though the decision was instantaneous, the objective dangerousness was significant.

50Mr Morrissey conceded the facts of this case take it out of the momentary

inattention cases where moral culpability is properly assessed as low. This was a proper and inevitable concession on the facts of this case. He nonetheless submitted and the prosecution agreed that your offending falls in the lower range of cases of dangerous driving causing death case. The prosecution submitted however in their additional written submissions that your moral culpability should be assessed as high.

51I do not think in the end that classifying the objective dangerousness or the moral culpability into particular categories of lower, higher or mid-range is of any real utility in this case.

52In the case of DPP v Weybury the Court of Appeal said of such classifications for offending of this type,

'It is in our opinion not helpful to debate whether, on the spectrum of cases from least to most serious, the offending in this case falls within a particular category such as "mid-range" or "bottom of the high-range" or other like classifications. Such an approach carries the risk that it will attract reference to current sentencing practices for offences which have previously been categorised in a particular range, whatever the circumstances of the offending and the mitigating circumstances. Such an approach may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases.'4

53In this case disinhibited by alcohol you decided to drive and then deliberately engaged in a manoeuvre that left you no way to avoid the catastrophic collision that caused the death of Mr Ekselman. Your moral culpability for these actions is significant.

Current sentencing practices

54I have had regard to current sentencing practices including the County Court sentences which were referred to on the plea and in the prosecution table, as well as the additional case Mr Morrissey referred to. Current sentencing

4 DPP v Weybury [2018] VSCA 120 paragraph 33

practices are a matter to be taken into account but are not a controlling factor in the exercise of the sentencing discretion.

Spanjol factors

55I turn now to the issue of the Spanjol5 factors, which I will explain.

56It is not a matter of dispute between the parties that the principles espoused in the case of Spanjol v The Queen are relevant in this case. Mr Morrissey referred specifically to the case Guseli v The Queen 2019 VSCA 29, in which these principles were applied.

57The law is that a sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the death or serious injury. But the evidence may support a qualification of one or both of these propositions.

58An offender may be able to establish that some other person and/or some external circumstance was partly responsible for the manner of the driving. Or the offender may be able to establish that there was an additional factor, outside the offender's control, which was also a material cause of the death. Such a circumstance leads to a reduction in penalty.

59Mr Morrissey submitted that in this case there was an additional factor outside of your control which was also a material cause of the collision that caused  Mr Ekselman’s death. The factor was that Mr Ekselman had crossed the road against the red pedestrian light. The contribution to the collision of Mr Ekselman crossing the road in the way that he did is set out in the defence written submissions at paragraph 5 which I think fairly reflects the sequence of events. Mr Morrissey properly placed no reliance on the first principle relating to an external factor influencing the manner of your driving.

5 Spanjol v The Queen [2016] VSCA 317

60The prosecution took no issue with the application of the Spanjol principles in the way submitted by the defence.

61This is plainly a matter to which I must have regard.

Personal circumstances

62I turn now to your personal circumstances. Your mother was born in Australia and your father was born in Greece and migrated to Australia when he was aged 11. You are an only child. You lived in Cairns for the first 10 years of your life before moving to Melbourne when you were approximately 11. Your father runs various successful restaurants both in Melbourne and Queensland. You had the benefit of two caring parents and a stable family life. You went to Ivanhoe Grammar School from Grade 6. You did well there at sporting activities. You were also a member of the school's state swimming team. You also played in a district soccer team.

63You were not particularly academic, and your marks deteriorated from Year 9 onwards which you attribute to social difficulties arising from some ethnic driven bullying. You lost interest in going to school after this and after Year 9 you went to a government secondary school for a year and then decided to leave school.

64Eventually, you commenced an apprenticeship as a chef within the family restaurant at around the age of 17. Ultimately, after three years or so you got injured playing sport and you had to have time off and did not finish the apprenticeship. Mr Morrissey indicated on his plea that you did not really want to be a chef, although you did want to work in the family business. You did however continue with that apprenticeship over a period of three years.

65From the age of 20 to 26 years you worked in the family restaurant full time. You also assisted your father in business development, specifically in opening new restaurant ventures. Your relationship with your father was strained at times, involving typical father/son friction.

66You commenced your relationship with your wife Marina, as I understand it from her reference, in 2014; but you had known each other for many years prior to that through friendship groups, before you started going out together. You married on 21 April 2018. You have a house together with a mortgage.

67A couple of years ago, you began to discuss with your wife the idea of leaving the hospitality industry and you had been offered several opportunities in finance. When you returned from your honeymoon you started working as a mortgage consultant with an organisation called Dream Street. I have been provided with references from Mr John Hronis and Mr John Matheou who speak of your progress there as well as the impact that this incident has had on you.

68Your career change was a turning point for you, and you were thriving in your new occupation. You became very close to your father again once the work- related tension had been removed. You had only been in this new position a short time before this event took place.

Remorse

69Mr Morrissey read to  the court an apology to  the family and loved ones of   Mr Ekselman you had written - I accept that apology as sincere and insightful. Many of the references tendered speak of your profound remorse for your actions in this matter. I do accept your remorse is profound and genuine and that you understand you will have to live with the death of Mr Ekselman on your conscience for the rest of your life and this weighs heavily on you. Your genuine remorse is a significant matter in mitigation.

Delay & Guilty plea

70It has now been over two years since this offence. You were not charged for

11 months and a committal proceeding in 2020 was adjourned due to COVID-19 restrictions. You ultimately pleaded guilty in January 2021 at a committal hearing but where no witnesses were cross-examined, as I

understand it. Of course, that delay has made it more difficult for Mr Ekselman’s family and friends, but I accept these two years have been very difficult for you as well and that indeed, as Mr Morrissey said, you stand at the end of this process. You have had to live with the near certainty of a significant sentence of imprisonment at the end of this legal process. This delay has no doubt contributed to the psychological issues you have experienced in this period.

71I do not view your plea as having any particular additional value based on the submission you had a viable causation argument. In the end in my view the prosecution case that your dangerous driving was a substantial and operating cause of Mr Ekselman’s death would have been difficult to resist in these circumstances.

72However, I accept your plea indicates remorse and a willingness to facilitate the course of justice. I give you credit for the utilitarian value of your plea and the saving of court resources heightened in the current environment where the court has a substantial backlog of jury trials resulting from the suspension of trials last year. You have spared the witnesses and Mr Ekselman's family and friends the traumatic experience that a trial of this nature would have entailed.

Verdins

73Mr Morrissey submitted that principles 5 and 6 of the case of Verdins6 are engaged. The prosecution agreed. I have had regard to the material contained in the psychological reports of Mr Luke Armstrong and Mr Poorni Selvaraja who has been treating you since November 2019. I have also read and taken into account the letter from Dr Sam Assad from the general practitioners’ clinic you attend. You are currently suffering from post-traumatic stress disorder and major depressive and anxiety disorders. You are taking medication for these conditions including Avanza. Mr Morrissey acknowledged these conditions as

6 R v Verdins & Ors [2007] VSCA 102

reactive to the offence.

74Put simply, these principles require me to take into account in mitigation that your mental condition will increase the burden of your imprisonment and the sentence will weigh more heavily on the you than if you were not suffering from these conditions. I must also take into account your mental state in mitigation if there is a serious risk that imprisonment will have a significantly adverse impact on your mental health.

75I indicate to you that I have taken both of these principles into account. I have no doubt that as a first offender of good character recently married and with a new career you were thriving in and considering your substantial psychological issues and remorse, the sentence I impose will weigh heavily on you.

76You will be required to serve the sentence I impose today during a period of uncertainty resulting from COVID-19 pandemic. Although conditions in prison are becoming less restrictive nonetheless the uncertainty surrounding incarceration in this period adds to the burden of your imprisonment and I take this matter into account in mitigation.

Good character

77I accept that you have been person of good character. This is established very clearly by the nearly 50 character references that were tendered on your behalf from close family including your parents, your wife, your friends, work colleagues, some people who were there that night and many others some being friends of your parents who have known you for many years since you were a young man. Additionally, you have no prior convictions at all. This is a substantial matter in your favour. Of course, in cases such as this where often offenders come before the courts without prior convictions and are able to demonstrate good character such matters cannot be allowed to overwhelm the significance of general deterrence, denunciation and just punishment in the sentencing process.

Prospects of rehabilitation

78On all the material before me, in my view, your prospects of rehabilitation are excellent. You have no prior convictions, you have been of good character, you have a solid employment record, supportive wife and family and a career that may still be available to you. You have continued to work since this offence.

79I accept that you have led a stable and family orientated life and I accept the submissions in relation to your good character and your prospects of rehabilitation.

Sentencing purposes

80The purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In this case general deterrence, denunciation and just punishment assume considerable importance. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I must also seek to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society. To that end given my assessment of your prospects of rehabilitation, your good character, the burden of this, your first sentence of imprisonment, and the other relevant mitigating matters, in fixing the non-parole period I have allowed for an extended period of supervision.

81Given my findings in relation to your good character and prospects of rehabilitation I do not take the view that specific deterrence assumes any particular importance in sentencing in this matter.

82I have balanced the serious aspects of your offending against the mitigating matters that I have accepted.

Sentence

83Mr Papagelou, I am about to sentence you now.

84For the charge of dangerous driving causing death you are convicted and sentenced to a period of imprisonment of four years.

85I fix a minimum non-parole period of two years.

86Now my estimate of the pre-sentence detention is 19 days, is that correct?

87MS HARPER: Eighteen excluding today or 19 including today.

88HIS HONOUR: Eighteen, all right.

89Pursuant to s.18 of the Sentencing Act 1991, I direct that 18 days of pre- sentence detention are to be deducted from the sentence that I have imposed and that this is to be entered to the records of the court.

90Pursuant to s.89C(1) I make a finding that this offence was committed while you were under the influence of alcohol.

91The offence of dangerous driving causing death is a serious motor vehicle offence pursuant s.87P of the Sentencing Act 1991. Thus, pursuant to s.89(1) I must cancel your licence to drive and do so for the minimum period of disqualification which is 18 months from today's date.

92Pursuant to s 6 AAA of the Sentencing Act I indicate that but for your plea of guilty I would have sentenced you to a period of imprisonment of five years and six months with a minimum non-parole period of three years and four months.

93Are there any other orders that are required to be made?

94MS HARPER: No, Your Honour.

95MR MORRISSEY: No, Your Honour.

96HIS HONOUR: The final thing is can I thank both counsel for their submissions in this matter which have been of considerable assistance. These matters are extremely difficult.

97I thank the family and friends and loved ones of Mr Ekselman for the dignity in which they have conducted themselves during the course of this proceeding. And I also thank the family of Mr Papagelou for their conduct during the course of this very difficult proceeding. And I will now adjourn the court.

98MS HARPER: May it please the court.

99MR MORRISSEY: As the court pleases.

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