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Kehayias v The Queen

Kehayias v The Queen

Case [2021] VSCA 261 17 September 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0012

BILL KEHAYIAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2021
DATE OF JUDGMENT:	17 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 261
JUDGMENT APPEALED FROM:	[2020] VCC 2004 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Base sentence 4 years’ imprisonment for recklessly exposing emergency worker to risk by driving – 30 months’ imprisonment, 15 months’ cumulation for reckless conduct endangering persons – 18 months’ imprisonment, 9 months’ cumulation for dangerous or negligent driving whilst pursued by police – Whether judge misapplied principles in Bugmy v The Queen (2013) 249 CLR 571 – Whether individual sentences and orders for cumulation manifestly excessive – Judge gave appropriate weight to applicant’s difficult background – Need for community protection and general and specific deterrence in light of objective gravity of offending and applicant’s prior offending and long standing drug problem – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Munster with Ms A Renieris	Valos Black & Associates
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
SIFRIS JA:

Introduction

On 7 September 2020, the applicant pleaded guilty to a number of charges on two indictments and four related summary offences arising from multiple occasions of offending. Following a plea hearing on 20 and 23 November 2020, the applicant was sentenced on 23 November 2020, in the County Court at Melbourne, as set out in the table below.

Charge Offence Maximum Sentence Cumulation

Indictment K10025817AC

1 Theft[1] 10 years 30 days

2 Reckless conduct endangering persons[2] 5 years 30 months 15 months

3 Recklessly exposing an emergency worker to risk by driving[3] 10 years 4 years Base

4 Dangerous or negligent driving whilst pursued by police[4] 3 years 18 months 9 months

Indictment K10025817BD

1 Intentionally damaging property[5] 10 years 30 days

2 Intentionally damaging property[6] 10 years 30 days

Related summary charges

11 Committing an indictable offence while on bail[7] 3 months 30 days

24 Using an unregistered motor vehicle[8] 50 penalty units Convicted and discharged

31 Unlicensed driving[9] 6 months 30 days

34 Contravening a personal safety intervention order[10] 2 years 30 days

Total Effective Sentence: 6 years’ imprisonment

Non-Parole Period: 3 years and 6 months’ imprisonment

Pre-Sentence Detention: 661 days

6AAA Statement: 9 years’ imprisonment with a non-parole period of 6 years.

Ancillary orders: Disposal order pursuant to Confiscations Act 1997 s 78(1). Licence cancellation and disqualification for 18 months pursuant to Sentencing Act 1991 s 89 on charge 3 on indictment K10025817AC. Licence cancellation and disqualification for 12 months pursuant to Sentencing Act s 89(1AA) on charge 4 on indictment K10025817AC.
[1]Contrary to Crimes Act 1958 s 74(1).
[2]Contrary to Crimes Act s 23.
[3]Contrary to Crimes Act s 317AE(1).
[4]Contrary to Crimes Act s 319AA.
[5]Contrary to Crimes Act s 197(1).
[6]Ibid.
[7]Contrary to Bail Act 1977 s 30B.

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 Kehayias v The Queen

Details

AGLC: Kehayias v The Queen [2021] VSCA 261
Case: [2021] VSCA 261
Decision Date: 17 September 2021

CaseChat Overview and Summary

The case of Kehayias v The Queen involved the appellant who was sentenced to a base sentence of four years’ imprisonment for recklessly exposing an emergency worker to risk by driving. The appellant was also sentenced to 30 months’ imprisonment for reckless conduct endangering persons, with 15 months’ cumulation, and 18 months’ imprisonment for dangerous or negligent driving whilst pursued by police, with 9 months’ cumulation. The appellant sought leave to appeal against his sentences and the orders for cumulation. The legal issues before the court were whether the trial judge misapplied the principles set out in Bugmy v The Queen and whether the individual sentences and orders for cumulation were manifestly excessive.

The court held that the trial judge gave appropriate weight to the appellant’s difficult background and the need for community protection and general and specific deterrence in light of the objective gravity of the offending and the appellant’s prior offending and long-standing drug problem. The court found that the judge did not misapply the principles in Bugmy v The Queen and that the individual sentences and orders for cumulation were not manifestly excessive. The court emphasised that the principles in Bugmy v The Queen do not require that all sentences be aggregated and then reduced to a single sentence. Rather, the trial judge must consider the culpability of each offence, the circumstances in which it was committed, and the need for general and specific deterrence. The court also noted that the appellant’s offending was serious and that he had a long history of drug use and offending. The court found that the sentences imposed were appropriate in all the circumstances.

The application for leave to appeal was refused. The court held that the appellant had not demonstrated that the sentencing judge’s approach was erroneous or that the sentences imposed were manifestly excessive. The court emphasised that the sentencing judge had considered all relevant factors and had exercised his discretion in a manner that was consistent with the principles of sentencing in Australian law. The court found that the appellant had not made out a case for leave to appeal and that the appeal should be dismissed.

Orders