Director of Public Prosecutions v Spanjol

[2015] VCC 1907

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01487

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSIP SPANJOL

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2015
DATE OF SENTENCE:	16 December 2015
CASE MAY BE CITED AS:	DPP v Spanjol
MEDIUM NEUTRAL CITATION:	[2015] VCC 1907

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Fisher	Office of Public Prosecutions
For the Accused	Mr S Ginsbourg	Stary Norton Halphen

HIS HONOUR:

1Josip Spanjol, you have pleaded guilty to one charge of Negligently causing Serious Injury, contrary to s.24 of the Crimes Act, 1958.  The maximum penalty for that offence is ten years' imprisonment. 

2You pleaded guilty when the matter was listed for committal and I have taken your early plea into account in your favour in mitigation of sentence. 

3

You have admitted a driving history, of which the only matter of note is the issue of a traffic infringement notice in 2010, for exceeding the prescribed alcohol limit while driving.  Your reading on that occasion was .074 per cent and you were disqualified from driving for six months.  You were not to be

re-licensed, except on the order of a magistrate. 

4A Prosecution Opening was read to the court and your offending may be summarised as follows: 

5On Saturday 22 March 2014, at 1.15 am, you were driving your black Holden SS Commodore, west in Reynolds Road, Templestowe.  You were driving your girlfriend, Athena Latinopoulos, to either her home or her cousin's home.  Prior to this you had both been drinking alcohol at your home in Donvale.  For reasons that are not clear, you decided to leave with her from your home.  You decided to drive when you must have known that you were significantly intoxicated.

6

Whilst driving, at between 79 and 85 kilometres an hour in a 70 kilometre zone, you lost control of your vehicle and it collided with a tree. 

Ms Latinopoulos was not wearing a seatbelt and she was ejected from the vehicle, landing 12 metres away.  She suffered multiple serious injuries, including a traumatic brain injury, multiple fractures, requiring multiple surgical procedures, lacerations, and bleeding in her lungs.  Her injuries were

life-threatening and she was hospitalised for 19 days.  Thereafter she was transferred to a rehabilitation centre.  You suffered minor injuries. 

7At 3 am that morning, a blood sample was taken from you, revealing a blood alcohol concentration of .160 per cent. 

8An expert opinion provided by the Victorian Institute of Forensic Medicine, states that at the time of driving, your blood/alcohol concentration would have been between .178 per cent and .195 per cent. 

9Plainly, as stated by the expert witness, you were absolutely incapable of having proper control of a motor vehicle. 

10At the scene of the collision, you stated to police that Ms Latinopoulos was the driver of the vehicle.  However later that day, you admitted to Ms Latinopoulos' brother, that you were driving the vehicle and you did so in an interview with police on 13 April 2014. 

11In my opinion, your offending is a serious example of the offence you have pleaded guilty to.  It was committed by you driving a motor vehicle in excess of the speed limit whilst you were highly intoxicated.  

12Road trauma is a prevalent and serious issue in our society that causes great harm and loss to individuals and their families. 

13The sentence that I impose must be calculated to deter others from offending in this manner, and our society must also be protected from offending of this nature. 

14Specific deterrence is an important consideration in your case.  You have previously been disqualified from driving, by reason of doing so whilst over the prescribed alcohol limit.  Furthermore, you are a well-trained security officer and you must have been aware of the dangers associated with alcohol and its misuse.  You chose to drive a motor vehicle when highly intoxicated and in my opinion, your moral culpability for your offending is high. 

15You must also be punished for what you have done. 

16I have received in evidence a Victim Impact Statement of Ms Latinopoulos.  Your offending has had a profoundly traumatic effect upon her.  She continues to suffer from cognitive impairment and her quality of life has been, in all probability, permanently damaged.  Your counsel submitted that as she was not wearing a seatbelt, she contributed herself to her injuries.  In doing so, he relied on R v Tran (2002) 4 VR 457. He submitted that she was, in effect, not an innocent victim and for that reason, there was, in your case, an absence of a not uncommon circumstance of aggravation.

17In my opinion, the fact that the victim was not wearing a seatbelt, is a matter that is to be accorded little weight in this case.  The significant and operative cause of Ms Latinopoulos' serious injuries was you driving your vehicle at excessive speed whilst highly intoxicated. 

18I now turn to your personal circumstances. 

19You were born on 13 April 1977 and you are now aged 38 years.  You are of Croatian parentage and have one half-sister.  You childhood and formative years were seriously disrupted by your parent’s separation.  Your father returned to Croatia and after an attempted reconciliation with your mother, he has remained there and you have had little contact with him for many years.  Your mother and half-sister are both in poor health.  You have never been married and you have no children. 

20You completed Year 12 at Emmaus College and since then have been employed in a range of unskilled occupations.  Since 2009, you have been employed as a security guard at Crown Casino. 

21You reside with two other men in a flat in Ringwood and I accept that you provide care and support to one of them who suffers from the debilitating effects of a stroke. 

22I have received in evidence a psychological report of Mr Jeffrey Cummins, detailing your development and psychological profile.  I agree with his conclusion that you are dependent on alcohol and that you require treatment for this.  Your dependency on alcohol has also intensified your underlying depression and anxiety. 

23I have also received in evidence a number of references, evidencing the remorse that you have exhibited for your offending and its consequences, and I accept that you are indeed remorseful for what you have done. 

24I also accept that the harm you have caused Ms Latinopoulos causes you a high degree of grief.  In my opinion, your prospects of rehabilitation are dependent upon you receiving long-term treatment and support for your alcohol dependency. 

25Your counsel submitted that it was open to me in your case to have you assessed for suitability for a Community Correction Order, and if suitable, that such an order be imposed, either of itself or in conjunction with a short term of imprisonment. 

26In Hutchinson v R [2015] VSCA 115, at paragraph 19, Priest JA said this:

"There will be cases, indeed many case where having regard to the                   circumstances of the offending, a CCO will be insufficiently punitive               to satisfy the need to punish the offender in a manner which, in all                 the circumstances, is just. At the risk of again traversing well-  trodden ground, it is axiomatic that in every case the sentence   imposed must depend on its own facts, including the circumstances                    of the offending and the offender and the circumstances of    aggravation and mitigation."

27In my opinion, His Honour's remarks are applicable in the circumstances of this case, and further, in my opinion, the imposition of a Community Correction Order, either of itself or in conjunction with a sentence of imprisonment, would not achieve the purposes for which this sentence is to be imposed.

28Finally, I note the potential loss of your security guard's licence does not, of itself or in conjunction with the other matters relied on by you in mitigation, alter my opinion in this regard. 

29In the result, the sentence of the court is as follows: 

30On the charge of negligently causing serious injury, you are convicted and sentenced to be imprisoned for three years'. 

31I order you serve 18 months before becoming eligible for release on parole.

32I declare that you have served eight days by way of pre-sentence detention, not including today. 

33But for you plea of guilty, I would have imposed a term of imprisonment of four years, and fixed a non-parole period of two years and six months. 

34All licences held by you are cancelled and you are disqualified from driving in the State of Victoria for a period of two years. 

35I have made the s.464ZF order sought by the prosecution, and I am required to inform you that the authorities can use reasonable force to obtain that sample. 

36Any further orders required? 

37MR FISHER:  No, Your Honour.

38HIS HONOUR:  Thank you.  You can be seated, Mr Spanjol. 

39The court will adjourn until 10.30.    

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