Director of Public Prosecutions v Tsigeletos
[2022] VCC 1165
•19 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-02134
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARALAMBOS TSIGELETOS |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2022 | |
DATE OF SENTENCE: | 19 July 2022 | |
CASE MAY BE CITED AS: | DPP v Tsigeletos | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1165 | |
REASONS FOR SENTENCE
Subject: culpable driving causing death
Catchwords: 8 years imprisonment NP 5 years 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | |
| For the Accused | Ms C. Marcs |
HIS HONOUR:
1
Haralambos Tsigeletos, you have pleaded guilty to three charges on indictment and two related summary charges. The first is a charge of culpable driving causing death for which the maximum penalty is imprisonment for
20 years. Culpable driving is a category 2 offence for the purposes of the Sentencing Act 1991 and the court must impose a custodial sentence for this offence unless one of the criteria in s5(2H)(a) to (e) applies.
2 There is a standard sentence for the offence of culpable driving causing death prescribed by s318(1A) of the Crimes Act 1958. The standard sentence is imprisonment for 8 years. The offence is thus a standard sentencing offence. That means ss5A, 5B and 11A of the Sentencing Act 1991 have application here, as well as s5 and all other relevant and applicable sentencing principles.
3 In sentencing you for the standard sentencing offence of culpable driving causing death, I must take the standard sentence of 8 years' imprisonment into account as one of the many factors relevant to the sentencing of you.
4 In the charge of culpable driving causing death your culpability was that you drove a motor vehicle negligently, and whilst under the influence of a drug, to such an extent as to be incapable of having proper control of the motor vehicle you were driving. At the time of your offending you were driving a motor vehicle whilst under the influence of the drug methylamphetamine.
5 Charge 2 is a charge of failing to stop after an accident. The maximum penalty for this offence is imprisonment for 10 years. And Charge 3 is a charge of failing to render assistance after an accident for which the maximum penalty is also imprisonment for 10 years. Related Summary Charge 8 is a charge of driving without a licence. The maximum penalty for this offence is imprisonment for six months. And related Summary Charge 10 is a charge of possession of cartridge ammunition without a licence. The maximum penalty for this offence is a fine not exceeding 40 penalty units.
6 You do not have a good driving record. When arraigned you admitted prior driving offences from three previous court appearances in the Heidelberg Magistrates' Court. In 2016 and 2018 you were fined for driving whilst your licence was suspended. In 2015 you were convicted of driving - exceeding the speed limit by 45 kilometres per hour or more. The charge was adjourned for 12 months and you were ordered to attend a road trauma awareness seminar and your licence to drive was suspended for a period of 12 months. You have not previously been sentenced to a custodial sentence.
7 The circumstances of your offending are contained in the summary of prosecution opening in writing. That document was read to the court by the learned prosecutor, Ms Holmes, and your counsel, Ms Marcs, accepted that the prosecution opening is accurate and forms a proper factual basis upon which I can proceed to pass sentence.
8 In those circumstances it is not necessary that I hear again, set out in full, that which is contained in the prosecution summary and I will do so only in an abbreviated way. These sentencing remarks should, however, be read in conjunction with what is set out in the amended prosecution summary which was tendered in evidence and marked as Exhibit A.
9 You were born in July 1995. At the time of this offending you were aged 23. You are now aged 27. I take into account you were still a relatively young man and at the time of this offending you were a youthful offender. I accept that rehabilitation is a very important consideration in the sentencing of you.
10 Prior to this offending you had held a Victorian P2 probationary driving licence. It expired on 10 July 2017, about 18 months before this offending. You were driving without a licence - related Summary Charge 8 unlicensed driving.
11 At the time of this offending you were the driver of a black Ford Territory motor vehicle.
12 The victim of your crime, whom I shall refer to as Alexander, was born in January 1992. He too was a young man, then aged 27. He had been attending as a worshipper at the Macedonian Orthodox Church and was attempting to walk across High Street in Epping on a pedestrian crossing when he was struck and fatally injured by the vehicle you were driving. This offending occurred in the early evening during summer on 14 February 2019.
13 At about 7.50 pm you were observed behaving in an impatient manner whilst attempting to drive your vehicle out of the car park of the Epping Plaza Shopping Centre in Epping. You were observed sounding your horn and speaking in an agitated tone. You were then observed to be travelling along Cooper Street, Epping close behind a Lancer motor vehicle in a tailgating manner. When you turned off Cooper Street to travel south along High Street you were again observed to be behaving in an agitated way and you were heard to be telling another driver to hurry up. This is relevant to put your offending in context.
14 As you travelled south along High Street, Epping there is an intersection controlled by traffic lights, the entrance to the Cosco which was on your left or the eastern side of High Street. As you approached this intersection you faced a red light. A car travelling in the same direction and in front of your vehicle started to pull up to obey the traffic signal. Other vehicles also complied with the traffic signal. You did not obey the traffic signal. Instead you pulled left into the left‑hand turn lane, clearly intended for use only by vehicles wanting to turn left into Cosco.
15 You used the left turn lane to pass the vehicles in front of you on the incorrect left‑hand side and as you did so Alexander went to cross High Street using the pedestrian crossing. He was fully compliant with the law. You were observes by a number of witnesses to enter the intersection at fast speed without attempting to slow down. You drove your vehicle through the intersection and through a red light and struck Alexander on the pedestrian crossing. Alexander was observed to have taken only two or three steps onto the pedestrian crossing before your vehicle struck him.
16 The impact threw Alexander momentarily onto the bonnet of your vehicle. You were seen to stop briefly at the scene for about 10 seconds before you drove away leaving Alexander obviously injured on the roadway. In doing so you were observed to drive through a red light at the next intersection - Charges 2 and 3, failing to stop to render assistance.
17 The impact caused Alexander to be thrown across the intersection and he came to rest on the roadway on the other side, western side, of the intersection. He was treated at the scene by ambulance paramedics and was found to have sustained life-threatening injuries. He was taken to Royal Melbourne Hospital where he was treated in the Intensive Care Unit. He died 14 days later from the injuries he sustained. An autopsy revealed multiple injuries had been sustained by Alexander. The cause of death was found to be head injuries sustained as a pedestrian in a motor vehicle collision.
18 There was overwhelming evidence to show that the death of Alexander was caused by your culpable driving. An accident reconstructionist and available CCTV footage all confirm the sequence of events which I have endeavoured to summarise above.
19 The collision with Alexander occurred at around 7.50 pm. To your credit about 50 minutes later you attended with your mother at Epping police station. When interviewed you told police you were in the wrong and you exercised your right to make no comment until you had received legal advice. I accept that when you attended at the Epping police station with your mother you were extremely distressed, crying hysterically and holding your head in your hands.
20 A search of your vehicle located a 12-gauge shotgun shell in the rear seat centre armrest - Summary Charge 10, possession of cartridge ammunition without a licence.
21 A blood sample was taken from you at 10.30 pm, more than two and a half hours after the collision. No alcohol was detected in your blood, however, methylamphetamine 0.3 milligrams per litre, amphetamine 0.03 milligrams per litre and tetrahydrocannabinol 4 milligrams, were detected in the sample. I accept these are low levels of drug intoxication. Dr O'Dell, a toxicologist, opined that you were driving after having consumed methylamphetamine and cannabis.
22 Dr O'Dell was informed of the observations of the witnesses to your driving before the collision. It was his opinion those descriptions are what would be expected from a person in a stimulated state from methylamphetamine intoxication. It was also Dr O'Dell's opinion that at the time of the collision you were affected by methylamphetamine to the extent that you were incapable of having proper control of a motor vehicle.
23 When an interview recommenced you admitted being in the wrong. You said you did not know your licence had expired. You told police you pulled over briefly, but 'freaked out'. You denied driving at speed or tailgating. You denied having been to Epping Plaza or having driven along Cooper Street prior to the collision.
24 Your driving showed an impatient and total disregard for other road users and resulted in the tragic death of Alexander. The death of Alexander was caused entirely by you driving in the grossly negligent and chaotic way that you did and whilst affected by drugs. Your moral culpability for this offending is high.
25 Ms Marcs submitted that your offending falls to be assessed in the middle range of culpable driving offending. Whilst this is a very serious example of what is a serious offence of culpable driving, I accept that submission. In sentencing for crimes such as this the court must appropriately apply sentencing principles of deterrence, both general and specific, and denunciation, protection of the public and just punishment. It must also have proper regard to your relatively young age and your prospects for rehabilitation.
26 Importantly, you have pleaded guilty to the charges and that is to your credit. By your pleas of guilty you have saved the time and cost of a trial and you ran only a limited committal. By your pleas of guilty you have taken responsibility for your crimes and you have advanced the administration of justice.
27
You were granted bail on 14 March 2019. There was a committal on
24 October 2019. This was a limited committal. A trial was initially listed to take place on 29 January 2021. That trial date was vacated and adjourned to 17 January 2022 for mention. That was caused by the pandemic that prevented trials from proceeding.
28
You were arrested and charged with other further offending on 24 May 2021 and you were remanded in custody after your legal representatives applied for your bail to be revoked. There followed further directions hearings in this court in July and August of 2021. The court was informed the charges had resolved into pleas of guilty on 20 August 2021. You were arraigned on
1 September 2021 and I heard your plea in mitigation on 11 April of this year.
29
At the time of your plea there was 195 days pre-sentence detention. As of today there is 294 days pre-sentence detention. I also have regard to the fact that you have been in custody on other charges between 24 May 2021 and
26 October 2021 which must be taken into account on the question of totality, but that time is not available to you as pre-sentence detention for these charges.
30 Whilst on remand you have completed the six-hour ice effects program, Exhibit 10.
31 Although you did not indicate an intention to plead guilty at the earliest possible opportunity I nevertheless treat you, for sentencing purposes, as having pleaded guilty at an early time. For that you are entitled to receive, and will receive, a reduction in sentence which I will refer to when I pass sentence shortly. I accept there has been some delay in disposing of this matter and that you have had these matters hanging over your head for some time without the benefit of finality. I have taken this into account.
32 Further, your pleas of guilty come at a time where the courts have a considerable backlog caused by the COVID-19 pandemic. The disposition of these charges has been somewhat fragmented because of this backlog and the consequences of the COVID-19 pandemic. By pleading guilty you have not added to that backlog and the utilitarian value of your plea is greater in these circumstances and you are entitled to receive a noticeable reduction in sentence for having pleaded guilty to the charges in the midst of the COVID‑19 pandemic.
33 Further, your time served has been entirely through the pandemic in the result that your imprisonment has been more burdensome because of lockdowns in prisons, restriction on movement within prisons and restrictions on prisoners receiving visits. The pandemic has also meant prisoners have been restricted in the courses they can undertake whilst in custody on remand. I accept that your guilty pleas further evidence your remorse for your conduct. All of these things go to mitigate the sentence you will receive and need to be taken into account in arriving at an appropriate sentence.
34 I accepted into evidence a victim impact statement from the mother of Alexander, Exhibit B. What comes through from that statement is that the life of a young man, with a loving family, has been lost, impacting on many lives and causing endless grief for all concerned. Alexander's mother has suffered a profound sense of needless loss at your hands. Pursuant to s5(2)(daa) of the Act in sentencing you I must have regard to the impact which your offending has had on the deceased's family, relatives and close friends. In passing sentence I have done so.
35 Ms Marcs filed with the court a helpful outline of her submissions, Exhibit 1. At the outset of her submissions Ms Marcs told me that at the time of the collision you were addicted to methylamphetamine and cannabis, and you were affected by methylamphetamine at the time of the offending. She conceded that s5(2H) of the Sentencing Act is enlivened and that a custodial sentence is the only available sentencing disposition.
36 On the plea Ms Marcs relied upon a body of evidence, including the psychiatric assessment of Professor Andrew Carroll dated 24 December 2021, Exhibit 2; a treating psychological report from psychologist Michael Bilyk dated 15 July 2019, Exhibit 3; a letter from your mother, Dimitra Iconomou, dated 24 January 2022; Exhibit 4, a letter from a former employer, Michael Gazis, dated 19 January 2022, Exhibit 5; a letter from a former employer, Frank Scroce, Exhibit 6; a newspaper clipping, Exhibit 7; CISP reports dated 13 March, 7 June and 8 July in 2019, Exhibit 8; and a Royal Melbourne Hospital discharge summary dated 6 April 2021, Exhibit 9.
37 In passing sentence I have had full regard to this body of evidence and the submissions.
38 Your parents separated when you were aged three or four years. You have instructed that you were exposed to domestic violence at the hands of your father in your formative years. You described your father's physical abuse of you as being both brutal and repetitive. You witnessed your mother being emotionally and physically abused by your father. After an incident where your father violently choked you, aged 11, you have had no further contact with him. You mother worked hard and raised you and your brother.
39 Much of this background is confirmed in a letter from your mother, Exhibit 4. In her letter she speaks of how this offending and the death of Alexander has affected you. She describes you as suffering from stress, anxiety and depression since this offending. She also described you as being remorseful for this offending, a fact which I accept.
40 You attended three secondary schools, leaving after Year 10. I was told and accept that you were bullied at school because you were overweight. You completed a TAFE course in building and construction and a pre‑apprenticeship course in carpentry and stair making. You have a good work history and have been employed at a fast food outlet and in landscaping and tiling. Some of your work history is set out in the references from Michael Gazis at Sharp Tiling, Exhibit 5, and from Frank Scroce, Exhibit 6.
41 At the time of this offending you were not in a relationship. You had broken up with your first girlfriend some months before. You found that difficult. In 2021 another significant relationship ended when you were remanded for further offending. This relationship lasting one year was described by Ms Marcs in her submissions as being tumultuous and aspects of it resulted in you relapsing back into substance abuse whilst on bail.
42 Your path into substance abuse resembles one often seen in this court. You have been using cannabis habitually since your teenage years. You first used methylamphetamine at aged 14. You have been using both drugs ever since, albeit with periods of abstinence. You were addicted to both cannabis and methylamphetamine at the time of this offending.
43 I was told that you sustained injuries to both your thumbs at the time you offended. I am not sure of the mechanism that caused you injury. I was told, and accept, that in the early hours of 1 April 2021 you were attacked and badly injured by assailants and you thought connected to Alexander's family. When attacked you were told, 'This is what you get when you take a life'.
44 As a result you were hospitalised for five days. In this attack you suffered three stab wounds, a broken nose and a fractured cheekbone, and mild head injuries. The attack has left you with some nerve damage to your eyes. Your injuries are confirmed by the discharge summary from the Royal Melbourne Hospital and photographs depicting your injuries appended thereto. I was told, and accept, that whilst in custody on remand you have been subjected to further assaults. I accept that you have endured extra-curial punishment and I have taken this fact into account. I accept that your time in custody on remand has been difficult for you.
45 Professor Carroll gave evidence before me and he spoke to his report, Exhibit 2. You expressed appropriate remorse and contrition to Professor Carroll. He thought your experiences as a child at the hands of your father may have led you to substance abuse. He thought that you have developed post-traumatic stress disorder secondary to the culpable driving offence, which has been exacerbated by a series of subsequent assaults in the community and in prison. He also thought you suffered from a major depressive disorder and anxiety. He thought you would have difficulty receiving appropriate mental health treatment in a prison setting.
46 Professor Carroll thought you to be a medium risk of reoffending. You need to be properly treated for your drug addiction and you need to avail yourself of pro‑social structured leisure and recreational activities. It will also be important for you to obtain employment and continue the good work pattern you maintained before this offending.
47 Whilst I generally accept the opinions of Professor Carroll, because you have had a long history of drug abuse I assess your prospects for rehabilitation as guarded. You have had multiple relapses since this offending due to drug taking. When you were before the Heidelberg Court for speeding in 2015 you were ordered to complete a road trauma course which I assume you completed, but that did not stop you reoffending whilst driving. Further, experience tells me that whether an offender who commits offences whilst drug‑affected can be fully rehabilitated depends very much on whether or not that offender can remain drug-free outside of a prison setting. Because of this one must be cautious when attempting long-term predictions in such circumstances.
48 Ms Marcs submitted, based on the opinions of Professor Carroll, that limbs 5 and 6 of Verdins principles are enlivened in the sentencing of you. From what I have seen I think that because you suffer from a major depressive disorder and anxiety, and post-traumatic stress disorder, a custodial sentence will weigh more heavily upon you than it would on a person in normal health. I have taken this fully into account.
49 As was properly argued before me, the standard sentence of eight years' imprisonment for the offence of culpable driving is but one guidepost for the court to have regard to. The standard sentence is the sentence for the offence taking into account only the objective factors affecting the relative seriousness of the offence. The objective factors affecting the relative seriousness of the offence must be decided without reference to factors personal to you such as your pleas of guilty, your lack of prior convictions, your drug habit and your state of mental health.
50 They must be decided wholly by reference to the nature of the offending. The standard sentence of eight years' imprisonment is the sentence to be imposed for a middle of the range offence of culpable driving causing death. I have already said I regard your offending as falling at the middle range. Section 11A(4) of the Sentencing Act provides that in fixing a non-parole period for a standard sentencing offence I must fix a non-parole period equivalent to at least 60 per cent of the head sentence unless it is in the interests of justice not to do so.
51 Ms Marcs submitted that because of your youth at the time of the offending, and your limited prior history, and because of the state of your mental health, you should expect better treatment outside of prison and because of that I should impose a non-parole period less than 60 per cent. In passing sentence I have rejected those submissions. In my judgment the non-parole period that I will fix properly addresses all relevant issues in relation to you without unduly diluting the importance of the head sentence that I fixed.
52 In accordance with the legislation I will be fixing a non-parole period that equates to 60 per cent of the sentence imposed on the culpable driving charge. Had it not been for a number of the mitigatory issues, particularly your mental health, and the fact that you have served time on remand not strictly counted as pre-sentence detention for these charges, I would have fixed a higher percentage of the head sentence to be served before you would be eligible for parole.
53 I have nevertheless taken these matters into account in deciding whether or not I should accumulate any sentences I impose on Charges 2 and 3 and/or the related summary charges. In all the circumstances I have decided that I should not make any accumulation to the base sentence imposed on the culpable driving charge. In passing sentence I have been greatly assisted by a summary of sentences imposed in other culpable driving cases where the sentence was imposed as a standard sentence and I have taken these into account.
54 On Charge 1, culpable driving causing death, you are convicted and sentenced to a term of imprisonment of eight years. On Charge 2, failing to stop, you are convicted and sentenced to a term of imprisonment of six months. On Charge 3, failing to render assistance, you are convicted and sentenced to a term of imprisonment of six months. On Summary Charge 8, unlicensed driving, you are convicted and sentenced to a term of imprisonment of one month. On Summary Charge 10, possession of cartridge ammunition, you are convicted and discharged. I direct you serve a minimum term of five years and four months before being eligible for release on parole.
55 I declare there has been 294 days pre-sentence detention of the sentences passed this day and direct that 294 days be reckoned as having been already served of the sentences passed this day and be entered into the records of the court and deducted administratively.
56 For the purposes of s6AAA of the Sentencing Act I state that had it not been for your pleas of guilty to the charges I would have sentenced you to a term of imprisonment of 10 years and I would have fixed a minimum term of seven and a half years' imprisonment before being eligible for parole.
57 The charge of culpable driving causing death is a serious motor vehicle offence within s87P(d) of the Sentencing Act. Any licence that you may hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence for a period of three years from this date.
58 Are there any questions arising out of that, Ms Marcs?
59 MS MARCS: No, Your Honour. If the court pleases.
60 HIS HONOUR: Ms Holmes?
61 MS HOLMES: No, Your Honour. Thank you.
62 HIS HONOUR: Thank you. Thank you both.
63 MS HOLMES: Thank you, Your Honour.
64 MS MARCS: Thank you, Your Honour.
65 HIS HONOUR: Adjourn the court, please.
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