DPP v Sismanoglou
[2016] VSCA 87
•2 May 2016
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 sentences imposed on charges 1, 2 and 3 (and the total effective sentence) are manifestly inadequate.
The Director has particularised his ground of appeal as follows:
In imposing an aggregate sentence[3] of imprisonment of 21 months and a community correction order for a period of two years on charges 1, 2 and 3, the sentencing judge –
(a)failed to have sufficient regard to the nature and gravity of the offences;
(b)failed to have sufficient regard to the moral culpability of the offender;
(c)failed to have sufficient regard to the sentencing purposes of general deterrence and denunciation;
(d)failed to have sufficient regard to the impact of the offending upon the victims; and
(e)gave too much weight to matters pressed in mitigation including youth and previous good character.
[3]Section 9 of the Sentencing Act 1991 permits a sentencing court to impose an aggregate sentence in respect of two or more offences that are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. The imposition of an aggregate sentence does not involve the pronouncing of some lesser sentence than would otherwise be imposed if individual sentences and orders for cumulation were to be imposed instead.
Mr Sismanoglou disputes that the sentence imposed upon him was manifestly inadequate. In fact, Mr Sismanoglou seeks leave to appeal against the sentence contending that it is erroneously high. Mr Sismanoglou’s proposed grounds of appeal are:
1. The sentence was manifestly excessive in that:
(a)the custodial component was in excess of that which was appropriate in combination with a community correction order with the conditions which were imposed;
(b)the learned sentencing judge failed to give appropriate weight to the punitive effect of the community correction order.
2.The learned sentencing judge was in error in concluding that a sentence of detention in a Youth Justice Centre was not open because, if a wholly custodial sentence were to be imposed, it would necessarily be in excess of three years.
Circumstances of the offending
On the afternoon of 1 January 2014, it had been raining and the roads were wet. Mr Sismanoglou was driving Marion Bregiannis[4] home to East Bentleigh in his father’s Holden Commodore. At that time, Mr Sismanoglou had held a probationary licence for about six months, having turned 18 on 15 June of the previous year. Ms Bregiannis is the victim in the offence alleged in charge 3, and was 17 years of age at the relevant time.
[4]Who the judge noted was, at the time of sentencing, Mr Sismanoglou’s girlfriend.
The rear driver’s side tyre of Mr Sismanoglou’s vehicle was in very poor condition. It was devoid of tread and worn down to such an extent that the steel plies were starting to come through the casing. It was clearly unroadworthy. After hearing evidence, the judge concluded that he had no doubt that Mr Sismanoglou was aware of the condition of the tyre prior to his driving on this occasion. The expert evidence was that the wearing of the tyre was consistent with the tyre having been subjected to the friction and forces created by a driver of that vehicle doing ‘burnouts’. The judge concluded that the tyre was damaged while the vehicle was in the possession of Mr Sismanoglou, Mr Sismanoglou having a ‘strong interest in vehicles doing burnouts’.[5]
[5]R v Sismanoglou (Unreported, County Court of Victoria, Judge Gamble, 26 October 2015) (‘Reasons’) [10].
The victims of the offences alleged in charges 1 and 2 (Annika Higgon and Ella Marchant) were close friends and travelling together with another friend in a Toyota Corolla. They had earlier attended a music festival in Lorne and were in the process of returning home to Brighton. In fact, they only had a very short distance to go before completing their journey. Ms Higgon was the youngest of their party. She was 19 years of age and was driving the Corolla at the relevant time. Her friend, Ms Marchant, was 21 years of age and seated next to Ms Higgon in the front passenger seat. Their friend, Radost Krasteva, was 20 and seated behind Ms Higgon in the rear of the vehicle.
Shortly before 4:30 pm on the afternoon in question, Mr Sismanoglou’s Commodore was observed to be stationary at a red traffic light on the corner of St Kilda Road and Wellington Street, in St Kilda. The Commodore was the front most vehicle in the lane in which it was located. At that time, Mr Sismanoglou was intending to continue travelling south towards East Bentleigh. When the light turned green, he accelerated away from the lights in a manner that caused the vehicle to ‘fishtail’ as he took off. The back of the Commodore was observed to slide from side to side for what was estimated to be about 30 to 40 metres before Mr Sismanoglou was able to regain control of the vehicle.
The distance between that intersection and the part of St Kilda Road at which the collision occurred is less than a kilometre. The relevant part of St Kilda Road has four lanes in each direction, separated by a wide median strip that contained two sets of tram tracks in the centre and large trees adjacent to the roadway. The applicable speed limit was 60 kph. The level of traffic at the time was medium.
Both vehicles were travelling in a southerly direction in the immediate lead up to the collision. The Corolla was in the third of the four lanes applicable to south bound traffic. As he was approaching a red light at the intersection with Alma Road, Mr Sismanoglou changed lanes and moved into the same lane as the Corolla. At that time, his vehicle was behind the Corolla. There were also other vehicles in the immediate vicinity of those two vehicles. When the lights turned green, the traffic commenced to travel south. The road in this area has a downhill gradient.
Mr Sismanoglou was driving at a higher speed than others around him (approximately 10 kph faster than the surrounding traffic). His speed was estimated to be at or just over the speed limit of 60 kph. He appeared to be impatient and anxious to change lanes and in an effort to do so, attempted what the judge said ‘[could] only be described as a risky and dangerous manoeuvre’.[6] This manoeuvre was described by one witness ‘as a completely unnecessary and unsafe action on his part’. Mr Sismanoglou accelerated quite hard and attempted to move into the right most lane. That action on his part caused the Commodore to ‘fishtail’ again with a resultant loss of control of the vehicle. As a consequence, the front passenger side of the Commodore struck the rear driver’s side of the Corolla. Ms Higgon had no forewarning and had no opportunity to take any evasive action before the initial impact from the Commodore.
[6]Reasons [24].
Following the impact, each of the vehicles went into a clockwise spin or rotation. Neither of the drivers were able to regain control of their vehicle and, as a result, each of the vehicles ended up colliding with a large tree and sustaining significant damage.
As a result of the collision, Ms Higgon suffered severe life threatening injuries to her head and body, including severe brain trauma. Thereafter, she remained unable to communicate verbally and totally dependent on others for her care and assistance with all activities of daily living. She remained hospitalised and died some ten months later from complications arising from the very serious head injury that she had sustained in the collision. These events constitute charge 1.
Ms Marchant was very seriously injured. She suffered multiple fractures to her hip and pelvis, a fracture to her coccyx, nerve damage to her right leg, lacerations to her head and a sprained left ankle. As a result of her injuries, Ms Marchant was required to receive significant inpatient care both at the Alfred Hospital and at a rehabilitation hospital. Complications arose when an infection set in after she had pins inserted in her hips to stabilise them. As a result, she required additional treatment and care which prolonged the time that she was in inpatient care. She was finally discharged from the rehabilitation hospital on 19 February 2014. Her rehabilitation in relation to her injuries was ongoing at the time of sentencing. These events constitute charge 2.
Ms Bregiannis was trapped in the Commodore and had to be cut out by the emergency personnel who attended the scene. She sustained a broken leg as a result of the collision. She had to wear a plaster cast for six weeks and then a brace for a further six weeks. These events constitute charge 3.
Mr Sismanoglou was more fortunate than his three victims. He suffered only a laceration and bruising to his forehead. That said, as the judge noted, Mr Sismanoglou had not consumed alcohol or taken any drugs prior to driving. Thus, alcohol and drugs played no part in the collision.[7]
[7]Reasons [31].
Mr Sismanoglou was taken from the scene of the collision to a police station in order to be interviewed about the incident. Before conducting any interview, however, the police arranged for him to be examined by a doctor for the purposes of assessing his suitability for interview. A doctor who examined him concluded that Mr Sismanoglou was unfit for interview at that time because of the injury that he had sustained to his forehead. As a result, Mr Sismanoglou was released pending further interview at a later time.
On 5 February 2014, Mr Sismanoglou voluntarily participated in an interview. On that occasion, he admitted to being the driver of the Commodore at the relevant time, but otherwise exercised his legal right (as he was entitled to) to give no comment answers to the questions and allegations that were put to him by the interviewing police officers.
As a result of Ms Higgon’s death, Mr Sismanoglou was re-interviewed on 14 November 2014. He again made no admission, again, as was his right.
Each of the vehicles involved in the collision was later forensically examined. The inspection of the Corolla revealed that it had no mechanical faults that would have caused, or contributed, to the collision. However, evidence tendered on the plea was to the effect that, so far as the Commodore was concerned, the lack of tread on the right driver’s side tyre would have prevented the tyre from clearing water from its rolling path, and this would have compromised tyre traction and likely had made a significant contribution to the collision.[8]
[8]Ibid [39]–[40].
Personal circumstances of the offender
Mr Sismanoglou was 18 years of age at the time of offending, and was 20 years of age at the time of sentence. He had completed his secondary education and was well regarded, having been a good student who demonstrated a commitment to his studies. At the time of sentencing he had recently completed the last of his second-year exams in a bachelor of commerce degree course at Deakin University.
As the judge noted, Mr Sismanoglou had shown a commitment to voluntarily giving his time to a number of worthwhile community causes, both at school and outside school.[9] Written and viva voce evidence tendered on the plea disclosed an offender who had always been regarded as a mature, responsible, intelligent, hardworking, respectful and thoughtful young man. Consistently with that evidence, Mr Sismanoglou was a person who had never been in trouble with the law before or after the offending for which he fell to be sentenced.
[9]Ibid [79].
The judge’s reasons
The judge commenced his reasons for sentence with a detailed description of the circumstances of the offending. He then described in some detail the devastating consequences the offending has had on Mr Sismanoglou’s victims — and in particular the family of Ms Higgon and Ms Marchant.[10] In addition to describing the appalling effect of Mr Sismanoglou’s offending on the principal victims, the judge said:
It should be recognised by this Court that when presenting their material during the plea hearing, Mr and Mrs Higgon and Ella Marchant displayed great courage and dignity. What they said was articulate, measured and informative.[11]
[10]Ibid [42]–[53].
[11]Ibid [43].
We have read these victim impact statements for ourselves. They are powerful and moving documents that disclose the devastating consequences of Mr Sismanoglou’s offending.
As to the gravity of the offending, the judge said:
This driving occurred on the afternoon of New Year’s Day. No doubt, many people were just going about their ordinary business enjoying the public holiday. St Kilda Road is a major multi-lane roadway. The amount of traffic at the time was medium. There were other road users in the immediate vicinity of the Commodore that Mr Sismanoglou was driving. A number of them were sufficiently proximate to be able to describe the collision. The Corolla being driven by Annika Higgon had three occupants and the Commodore being driven by Mr Sismanoglou had a front seat passenger. It had been raining and the road was wet. Based on his experience at the earlier set of traffic lights, Mr Sismanoglou knew that if he accelerated sufficiently heavily from a stationary position in the wet conditions, then the Commodore that he was driving and which he knew to have a defective tyre, was very likely to ‘fishtail’ and thereby cause him to lose control of that vehicle.
Within what must have been only a few minutes or so of that warning at the previous lights, and once he had already reached a speed that was close to or slightly above the 60 km/h speed limit, Mr Sismanoglou chose to perform a very dangerous overtaking manoeuvre under significant acceleration. That was a deliberate decision on his part. It was an aggressive and totally unnecessary action. The level of dangerousness involved in that driving was significant. The wet road conditions alone made any act of acceleration risky. When combined with a rear tyre that lacked any real tread, that risk was increased very substantially. Moreover, the presence of a number of other vehicles in the immediate vicinity made the overtaking manoeuvre more difficult and more risky. To accelerate as he did at the speed that he did carried a very high risk of losing control of his vehicle and of colliding with one or more of the other vehicles in the vicinity. The extent of potential harm was, in those circumstances, relatively high.
Accordingly, I consider that the degree of dangerousness of Mr Sismanoglou’s driving to be quite high.
In respect of that driving, he bears a significant level of moral culpability. His decision to drive as dangerously as he did in knowing disregard of the warning that he had been given moments earlier about accelerating in those road conditions increases the level of his moral culpability and aggravates the seriousness of his offending.[12]
[12]Ibid [65]–[68].
The judge accepted that Mr Sismanoglou pleaded guilty at an early stage, and was entitled to a significant discount in his sentence.[13] Further, the judge said that he was prepared to find that Mr Sismanoglou’s plea of guilty was indicative of remorse. However, his Honour said:
This issue is not without its nuances, however, as the other relevant material indicates. A good deal of that material indicates that he has shown remorse. For example, the statements to that effect by very many referees, including Ms Bregiannis and her father, by the psychologist, Peter Antonenko, and by the author of the pre-sentence report in relation to suitability for a youth justice centre order. But, on the other hand, the authors of the other pre-sentence report indicate that when interviewed on 22 September, Mr Sismanoglou did, to some extent, minimise his role in the offending. In their view, he presented with a reluctance to accept ownership of his role in the offending but accepted accountability for the outcome.[14]
[13]Ibid [96]–[97].
[14]Ibid [98].
As to general deterrence, the judge said that general deterrence was a very important consideration and that the sentence to be imposed must seek to discourage other road users who are tempted to drive dangerously. Further, the importance to be attached to general deterrence was said by the judge to mean that relatively less weight could be attached to Mr Sismanoglou’s youth.[15]
[15]Ibid [103]–[107].
As to denunciation, the judge said:
Denunciation is another important consideration. This Court must, on behalf of the community denounce and condemn the criminal conduct in which Mr Sismanoglou engaged on this occasion. It must make clear that such conduct is completely unacceptable. On this aspect, it is worth referring briefly to what was said by the Court in Neethling and by Maxwell P in Towle.
Paragraph [56] of the Court’s judgment in Neethling was in these terms:
‘The rationale of the criminal law is to minimise the damage occasioned by anti-social behaviour, by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of the victims and by rehabilitating offenders. The sentencing function enables the courts to state with crystal clarity that conduct of this particular kind will not be tolerated.’
In paragraph [76] of his judgment in Towle, Maxwell P stated:
‘The imposition of sentence for serious criminal conduct is (amongst other things) an expression of the community’s condemnation of what occurred. Denunciation contributes to, but is distinct from, general deterrence. As the Court of Criminal Appeal said 15 years ago in R v Penn, one of the reasons for community revulsion at this kind of offending is “a general recognition of the needless waste of human life together with sorrow and distress that is usually [its] concomitant”.’[16]
[16]Ibid [108]–[110].
As to specific deterrence, the judge said:
In light of the nature and seriousness of this offending, specific deterrence is still relevant to my sentencing task. However, given Mr Sismanoglou’s lack of previous or subsequent offending and his very good prospects of rehabilitation, it assumes a much lesser role than some other sentencing considerations.[17]
[17]Ibid [111].
As to just punishment, the judge said:
Among other things, s 5 (1) of the Sentencing Act1991 requires me to punish Mr Sismanoglou to an extent and in a manner that is just in all the circumstances. In making the assessment of what constitutes a just punishment, I must have regard to all relevant sentencing considerations, including the nature and seriousness of this offending, the personal circumstances of Mr Sismanoglou and the mitigatory matters upon which he can rely.[18]
[18]Ibid [112].
As to Mr Sismanoglou’s youth and prospects for rehabilitation, the judge said:
I must also have regard to his youth and prospects for rehabilitation, which I have concluded are very good. He was only 18½ years old when he committed these offences. He only recently turned 20, a little over 4 months ago. He has no previous or subsequent findings of guilt or convictions for any criminal offences, and there are no other charges pending. He is an intelligent and mature young man who is capable of completing his tertiary studies and embarking on a worthwhile career. He continues to enjoy strong support from his family and others within the community. I consider that there is a low risk of him re-offending.[19]
[19]Ibid [113].
Next, the judge gave careful consideration to sentencing statistics and a number of cases that had been referred to him as ‘comparable’. The judge then dealt with the submissions that had been made to him on sentence. The judge summarised those submissions as follows:
In their sentencing submissions, Mr Sismanoglou, your counsel urged this court to deal with this matter by way of a community correction order standing alone. In the alternative, they submitted that you be sentenced to be detained in a Youth Justice Centre. By way of a further alternative, Mr Richter QC submitted that in the event that this Court took the view that neither of those sentencing dispositions were open, then a combination sentence involving a period of immediate imprisonment together with a suitably tailored community correction order was to be preferred to a sentence that entailed a head sentence and a non-parole period. Mr Richter QC went further and made the following two additional submissions. First, he submitted if a combination sentence is imposed, the sentence of imprisonment which is imposed should be one that includes a non-parole period. And, second, in the event that any period of adult imprisonment is imposed, this Court should, in the circumstances of this case, make a recommendation to the Adult Parole Board that they give consideration to exercising their power under section 471 of the Children, Youth and Families Act 2005 to direct that Mr Sismanoglou be transferred to a youth justice centre.
In reply, the prosecution submitted that the offending in this case was very serious and as such, it was simply not open to sentence Mr Sismanoglou to a community correction order. They relied on the same argument in respect of the suggested alternative of detention in a youth justice centre and added that it was not open in the circumstances to accede to that defence submission because the period of incarceration required in this case would need to be in excess of the 3 year ceiling that is applicable to youth justice detention.[20]
[20]Ibid [122]–[123] (footnote omitted).
Finally, the judge said:
In my view, it is not open, in the particular circumstances of this case, to place Mr Sismanoglou on a stand-alone community correction order. Such a disposition would simply not satisfy the need to give appropriate weight to the sentencing principles of general deterrence and denunciation and would not adequately punish Mr Sismanoglou for the offences that he committed.
To my mind, the seriousness of that offending mandates an immediate custodial sentence.
Furthermore, in light of the nature and seriousness of the offending, the need to properly reflect the importance of deterrence and denunciation, and the need to ensure that each of the victims is separately recognised in the overall level of punishment imposed, I have concluded that detention in a youth justice centre is not open in this case. In short, that is because a period of confinement of three years or less would not represent a just or adequate punishment for the offences that Mr Sismanoglou committed.
But, as Mr Kissane QC properly conceded at the further plea, that is not an end to the matter in the sense that the Court would, by that finding alone, necessarily be driven to sentence Mr Sismanoglou in a manner that involved the imposition of a head sentence and a non-parole period.
Before this court could even consider that most severe of sentencing options, it would first need to consider whether, given that some time in custody was warranted, a community correction order in conjunction with a sentence of imprisonment of less than two years could provide an adequate and just punishment of Mr Sismanoglou. That is no more than an application of the important principle of parsimony in the context of the new sentencing landscape that has been created by the recently introduced sentencing options regarding community correction orders, as interpreted and explained by the Court of Appeal in Boulton and a number of subsequent cases.
Having given this matter very careful consideration, I have concluded that it would, providing that the community correction order was of sufficient length and contained sufficient conditions so as to provide the necessary and appropriate additional level of punishment to the period of imprisonment. In that way, this Court could impose a shorter custodial sentence than it otherwise would have, yet still punish Mr Sismanoglou to an extent and in a manner that is just in all the circumstances.
Of course, placing him on a community correction order in the manner proposed also aims to foster and maximise his chances of rehabilitation through appropriate supervision and treatment conditions. It is not just Mr Sismanoglou who stands to benefit from such a course, but the community as well. If, on his release from custody, he receives the necessary assistance which that order is designed to facilitate, and he complies with all aspects of that order, then his prospects will no doubt be enhanced and his chances of re-offending, which are already low, reduced even further.
I am cognisant of the fact that this will represent the first time that Mr Sismanoglou has been involved in the criminal justice system. He has never been incarcerated before and I have no doubt that for that and other reasons he will likely find the experience of a custodial sentence a difficult one. I have borne that matter in mind when determining the appropriate sentence to impose. The period of imprisonment which will be imposed is, in my view, the minimum period that justice requires. In my view, to impose a lesser period would simply not adequately reflect the importance that needs to be attached to the sentencing principles of general deterrence and denunciation and would not justly punish Mr Sismanoglou for the criminal conduct in which he engaged.[21]
[21]Ibid [131]–[138] (footnotes omitted).
Manifestly inadequate or manifestly excessive?
This was a difficult sentencing exercise for a sentencing judge. Mr Sismanoglou was a young man of previously impeccable character whose behaviour up to the time of offending was exemplary. On the other hand, in a short space of time he committed three serious offences with devastating consequences for his victims and their families. Issues of just punishment, denunciation, general deterrence and specific deterrence loomed large in the sentencing exercise. That said, so did the powerful mitigatory factors associated with youth, previous good character and good works.
The judge, in a detailed and carefully reasoned sentence dealt with all of the relevant and competing considerations that fell to be taken into account in sentencing Mr Sismanoglou for his very serious offending. The ground of manifest inadequacy pursued by the Director, like the ground of manifest excess pursued by Mr Sismanoglou, can only succeed if the judge’s sentence (either on an individual charge or the total effective sentence) was wholly outside the permissible range of sentencing options open to the judge. The sentence cannot be interfered with simply because this Court might, or even would, have imposed some different sentence had we been the sentencing court.
In our view, the sentence imposed by the judge was a very lenient one. However, we are unable to say that it was wholly outside the range of sentencing options open to the judge. Further, it is to be remembered that a primary purpose of Crown appeals is to correct errors of principle. In this regard, Crown appeals serve a different purpose from appeals brought by offenders.[22] In the present case we are unable to discern any error of principle on the part of the sentencing judge.
[22]Cf Green v The Queen (2011) 244 CLR 462, 477 [36]. See further DPP v Oksuz [2015] VSCA 316.
On the fourth day of the plea hearing, senior counsel for the prosecution (a very experienced Senior Crown Prosecutor in the Director’s office) said to the judge, in respect of the possibility of a composite sentence of a term of imprisonment coupled with a community correction order, that:
There now is the possibility of your Honour tailoring a sentence in between that. That includes a term of imprisonment and a CCO.
…
I accept they are all relevant matters, your Honour, and that would enable if your Honour so choose to impose a sentence of a combined sentence of imprisonment with a CCO.
Senior counsel who appeared for the Director in this Court[23] submitted to us that these statements did not involve any concession that a sentence that combined a term of imprisonment with a CCO was within range. Counsel referred the Court to what the prosecutor had said to the trial judge in an exchange a little earlier on the same day; namely, that the Crown maintained its position (put, by different counsel, on an earlier day of the plea hearing) that ‘these offences can only be dealt with by way of an immediate custodial sentence’. It was submitted that the statements we have set out above, when read in context, did not involve any concession that a combined term of imprisonment with a CCO was within range. We reject that submission.
[23]Not senior counsel who appeared for the prosecution on the plea.
On any fair reading of the passages we have extracted above, prosecuting counsel was conceding (after debate with the judge) that a term of imprisonment with a CCO would be within range. That concession is very significant in this Court’s assessment of whether the sentence imposed by the judge should now be increased.
The authorities governing the relevance, on Crown appeals, of the Crown taking a different stance on appeal from that taken at first instance, were reviewed in detail by Phillips JA[24] in Director of Public Prosecutions v Waack.[25] After reviewing the authorities, his Honour said:
The foregoing seems to me to put beyond argument that, so far as this court at least is concerned, what was said in Allpass should be regarded as the guiding principle: the Crown is not debarred on appeal from taking a stance different from that adopted at first instance but the appellate court, in the exercise of its discretion, is entitled to take account of the fact that at first instance the Crown acquiesced in the course that was taken by the sentencing judge, if that be the fact. Even a concession made by prosecuting counsel, if inappropriate, will not be necessarily fatal to an appeal by the Director, according to Yanner and Yanner. Only Howlett might be seen as pointing the other way and, if it does, then with great respect I think that we ought not to follow it. The better view appears to be that on a Crown appeal against sentence it is ultimately a matter for the court's discretion what weight to accord to the position taken by the Crown at first instance, if different, and such weight will vary from case to case according to the facts. The degree of the departure must be a relevant consideration, as also the seriousness of the criminal conduct being punished and the magnitude of the sentencing error identified on the appeal — that is, the degree to which the appellate court thinks that the sentencing judge fell into error. It will also be very relevant if the respondent was given a non-custodial sentence at first instance and an immediate custodial sentence is being sought on appeal, although, as Rowland J pointed out in Acerbi, there are competing considerations to be weighed: fairness to the accused and fairness to the public at large, if not also to those sentenced for similar crimes.[26]
[24]With whom Batt and Chernov JJA agreed.
[25](2001) 3 VR 194 (‘Waack’).
[26]Ibid 207 [31].
Unlike the concession in Waack, the concession in the present case was made, as we have said, by a very experienced member of senior counsel who is a Senior Crown Prosecutor in the Director’s office. As was fairly conceded by senior counsel for the Director in this Court, if a concession was in fact made below then that concession poses an additional impediment to the Director succeeding on his appeal. We have held that a concession was made. However, and in any event, as we have already said, while the sentence was very lenient, ultimately we have concluded that it was not wholly outside the range of sentencing options available to the judge.
Finally, so far as the Director’s appeal is concerned, it is plain from those parts of the sentencing judge’s reasons that we have extracted above that the judge carefully and explicitly weighed each of the issues identified in the particulars given by the Director in respect of his ground of appeal. There is simply no basis for saying that the judge failed to give proper weight, or gave excessive weight, to any of the matters identified by the Director in his particulars, or indeed any of the other sentencing matters that fell for consideration in this case.
As to Mr Sismanoglou’s complaint of manifest excess, this complaint is wholly without substance. Notwithstanding the very significant mitigatory factors that may be prayed in aid by Mr Sismanoglou, the objective seriousness of this offending and its consequences mandated a sentence of at least the severity of that which was imposed by the judge. If anything, as we have said, we think that Mr Sismanoglou was the beneficiary of a lenient and merciful sentence by the sentencing judge.[27]
[27]Cf this Court’s recent decision in DPP v Borg [2016] VSCA 53 where a sentence of a 5 year community correction order for two charges of dangerous driving causing death and two charges of dangerous driving causing serious injury was held to be manifestly inadequate but the appeal was dismissed in the exercise of the residual discretion.
During the course of the hearing, senior counsel for Mr Sismanoglou relied upon statistics set out in the Sentencing Advisory Council’s publication ‘Major Driving Offences Current Sentencing Practices’ published in June 2015.[28] It was submitted that those statistics supported the applicant’s contention that the sentence imposed upon him was manifestly excessive. We disagree.
[28]Those statistics show, amongst other things, that the median term of imprisonment imposed for charges of dangerous driving causing death before 19 March 2008 (when the maximum term of imprisonment was 5 years) was 2 years and 6 months, and that this median has only increased by 20% to 3 years imprisonment subsequent to the doubling of the maximum term of imprisonment to 10 years in respect of offences committed on or after 19 March 2008.
It is not necessary to set out the detail of the tables and parts of the report relied upon by the applicant.[29] It is sufficient to say that the offences of dangerous driving causing death and dangerous driving causing serious injury can be committed in a very wide range of circumstances. As such, sentencing statistics for these offences, which are not capable of distinguishing in any real way between the myriad of different factual circumstances that may arise, are not of any great assistance in the resolution of the issues before this Court. The only point we would wish to take from the statistics published by the Sentencing Advisory Council is that arguably the statistics show that there may come a time when this Court may be required to examine current sentencing practices with respect to the offences of dangerous driving causing death and dangerous driving causing serious injury.[30] However, the present is not such a case.
[29]In particular, pages 3-4, 6, 8, 38-49 and 60-79.
[30]Cf Harrison v The Queen [2015] VSCA 349.
The possibility of a sentence of detention in a youth justice centre
The judge concluded that detention in a youth justice centre was not open because the maximum period of confinement of three years that could be imposed ‘would not represent a just or adequate punishment for the offences that Mr Sismanoglou committed’.[31] Mr Sismanoglou argues that this statement cannot be correct in the light of the sentence actually imposed of 21 months’ imprisonment together with a two-year CCO (a total period of three years and nine months). There is nothing in this submission. While a CCO is not as punitive as a term of imprisonment, it is (as has been said before) punitive for each day of its operation. We see no inconsistency, in the circumstances of this case, in the judge saying that he was not prepared to impose a sentence of three years, or less, detention in a youth justice centre, in circumstances where he was prepared to impose the combination sentence ultimately pronounced.
[31]Reasons [133].
In any event, had we been of the view that there was any inconsistency in what were otherwise detailed and high quality reasons for sentence, we would have concluded that it was not reasonably arguable that any different sentence should now be imposed.
Conclusion
The Director’s appeal against sentence must be dismissed. Mr Sismanoglou’s application for leave to appeal against sentence must be refused.
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