DPP v Sismanoglou - [2016] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0225

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
STEPHEN SISMANOGLOU	Respondent

S APCR 2015 0226

STEPHEN SISMANOGLOU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AP, BEACH and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 April 2016
DATE OF JUDGMENT:	2 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 87
JUDGMENT APPEALED FROM:	DPP v Sismanoglou (Unreported, County Court of Victoria, Judge Gamble, 26 October 2015)

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CRIMINAL LAW – Sentence – DPP appeal – Dangerous driving causing death (1 charge) – Dangerous driving causing serious injury (2 charges) – Aggregate sentence of 21 months’ imprisonment coupled with CCO of 2 years – Whether sentence manifestly inadequate – Youthful offender – Powerful mitigatory considerations – Sentence not manifestly inadequate – Concession on plea that sentence within range – Director’s appeal dismissed.

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Dangerous driving causing death (1 charge) – Dangerous driving causing serious injury (2 charges) – Aggregate sentence of 21 months’ imprisonment coupled with CCO of 2 years – Whether sentence manifestly excessive – Whether sentencing judge erred in concluding that sentence of detention in youth justice centre not open – Complaint that sentence manifestly excessive not reasonably arguable – Complaint of error not reasonably arguable – Not reasonably arguable that any different sentence should be imposed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert QC with Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions
For Mr Sismanoglou	Mr M A Tovey QC with Ms K Argiropoulos	Robert James Lawyers

WEINBERG AP

BEACH JA
FERGUSON JA:

Introduction

On 27 May 2015, Stephen Sismanoglou pleaded guilty in the County Court to one charge of dangerous driving causing death (charge 1) and two charges of dangerous driving causing serious injury (charges 2 and 3). The maximum term of imprisonment for the offence of dangerous driving causing death is 10 years.[1] The maximum term of imprisonment for dangerous driving causing serious injury is five years.[2]
[1]Crimes Act 1958, s 391(1).
[2]Ibid s 391(1A).

A plea hearing was conducted over four days in August and October 2015. On 26 October 2015, Mr Sismanoglou was sentenced to an aggregate term of imprisonment of 21 months together with a community correction order for a period of two years. As part of the terms of the community correction order, Mr Sismanoglou was ordered to perform 250 hours of unpaid community work, and to undergo mental health assessments and treatment as directed in accordance with the order. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that but for Mr Sismanoglou’s plea of guilty, the judge would have imposed a total effective sentence of four and a half years’ imprisonment with a non-parole period of two years and eight months.

The Director of Public Prosecutions appeals against the sentence imposed on the following grounds:

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Sismanoglou

Details

AGLC: DPP v Sismanoglou [2016] VSCA 87
Case: [2016] VSCA 87
Decision Date: 2 May 2016

CaseChat Overview and Summary

In the case of DPP v Sismanoglou, the Director of Public Prosecutions (DPP) appealed against the sentence imposed on the defendant for dangerous driving causing death and two instances of dangerous driving causing serious injury. The defendant was sentenced to a total of 21 months' imprisonment and a community corrections order of two years by the Supreme Court of Queensland. The court was tasked with determining whether the sentence was manifestly inadequate, particularly considering the defendant's youthful age and the presence of significant mitigating factors.

The primary legal issue before the court was whether the aggregate sentence of 21 months’ imprisonment, coupled with a community corrections order of two years, was manifestly inadequate. The court had to weigh the defendant's age, which was a powerful mitigating consideration, against the gravity of the offences committed. Additionally, the court needed to decide whether the sentencing judge had erred in concluding that a sentence of detention in a youth justice centre was not an appropriate option.

The court found that the sentence was not manifestly inadequate, as it appropriately reflected the severity of the offences and took into account the defendant's age and other mitigating factors. The powerful mitigatory considerations did not render the sentence manifestly inadequate. Furthermore, the court held that the concession on plea indicated that the sentence was within the appropriate range. Consequently, the Director's appeal was dismissed. The court also found that the defendant's application for leave to appeal against the sentence was not reasonably arguable, as the complaint that the sentence was manifestly excessive was not supported by the evidence. The application for leave to appeal was therefore refused.

Orders