Koukoulis v The Queen

[2020] VSCA 19

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0116

GEORGIOS KOUKOULIS	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2020
DATE OF JUDGMENT:	14 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 19
JUDGMENT APPEALED FROM:	[2019] VCC 620 (Judge Meredith)

---

CRIMINAL LAW – Application for leave to appeal against sentence – Convicted of dangerous driving causing death – Sole cause of accident failure to keep proper lookout – Combination sentence 12 months’ imprisonment, 2 year community correction order and license disqualification 3 years – Ground of manifest excess in respect of period of license disqualification only – Sentence longer than necessary to fulfil purposes of punishment, rehabilitation and protection of community – Appeal allowed – Appellant resentenced to license disqualification of 18 months – Lefebure v The Queen (2000) 112 A Crim R 41; [2000] VSCA 79, Rodi v The Queen [2011] VSCA 48, R v Tran (2002) 4 VR 457; [2002] VSCA 52 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Barreiro	Pica Criminal Law
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

WHELAN JA:

1. The applicant is a middle aged man of previously unblemished character.  On 7 September 2017 he was working as a bus driver.  As a result of inattention, he struck and killed a pedestrian.  He pleaded guilty to one charge of dangerous driving causing death and was sentenced in the County Court on 3 May 2019 to a term of 12 months’ imprisonment to be followed by a two year community correction order.  In addition, his driver’s licence was cancelled and he was disqualified from obtaining a further licence for a period of three years.

1. The applicant now seeks leave to appeal his sentence.  The application is concerned only with the period of disqualification after the licence cancellation.  In the application the proposed grounds of appeal were that the learned sentencing judge denied the applicant procedural fairness on the issue, and that the period of cancellation was manifestly excessive.  Before us, counsel abandoned the procedural fairness ground and only argued manifest excess.

Circumstances of the offence

1. The applicant was driving his bus down Centreway in Mordialloc and stopped at traffic lights at the intersection of Centreway and Beach Road.  He was intending to turn right.  The lights facing him were red.  Whilst stationary, he picked up a document known as a ‘shift bat’, which summarises the driver’s duties on their shift.  When the lights facing him turned green, he commenced to turn right.

1. There was CCTV in the applicant’s bus.  The summary of prosecution opening, which was tendered on the plea in conjunction with the CCTV footage, described what the CCTV footage showed as follows:

CCTV shows that the bus starts moving while the offender is still holding the ‘shift bat’ in his right hand and using his left land to touch one of the bus’s on-board computer systems (the MYKI machine).

The offender can be seen on CCTV looking to his right (north along Beach Road) and as the bus starts turning he suddenly stops the bus (moment of impact) and opens the passenger door and gets out of the bus. 

1. The pedestrian had been on Centre Way on the opposite side of the street to the bus and had crossed Beach Road in accordance with a ‘green man’ signal.  He was about three quarters of the way across the road when he was struck by the bus. 

1. The applicant’s bus was not travelling at an excessive speed.  The applicant was not under the influence of any alcohol or drugs.  The sole cause of the accident was the applicant’s failure to keep a proper lookout.

The plea and the sentencing reasons 

1. On the plea counsel for the applicant sought a ‘combination’ sentence of imprisonment plus a community correction order.  The prosecution submitted that such a sentence would be appropriate in the circumstances.

1. In the course of the plea counsel for the applicant referred to the fact that pursuant to s 89 of the Sentencing Act 1991 the sentencing judge was required to cancel the applicant’s licence. Pursuant to s 89(2A) of that Act the minimum period of disqualification after cancellation was 18 months. The only submission made by counsel for the applicant on the plea in relation to the period of disqualification was to refer to the minimum and submit that ‘in the context of this case, that is ample’. The judge said in response that he would think about the issues (including that one) that the applicant’s counsel had raised.

1. In his reasons for sentence the sentencing judge did not refer to the period of disqualification other than when he announced the order he would make in that regard, being three years’ disqualification.

Submissions

1. In his Written Case, the applicant referred to what was said to be the ‘profound impact’ of the period of disqualification upon the applicant.  As to that impact the following was submitted in the Written Case:

When released he will resume work at Pacific Shopfitters in Preston, where he began working after the incident.  He lives in Oakleigh and must commute a substantial distance each day.  He understands that he will have to rely on public transport and the assistance of others for a period, however the length of the cancellation will be burdensome and hamper his efforts to reintegrate into the community after his release from his first and only time in custody.

1. In the applicant’s Written Case particular reliance was placed upon the observations of Tadgell JA concerning disqualification in Lefebure v The Queen.[1]

   [1](2000) 112 A Crim R 41; [2000] VSCA 79.

1. In his oral submissions, counsel for the applicant submitted that the fixing of an appropriate period of disqualification required consideration of three matters:

—whether disqualification was required as a component of the punitive element of the sentence;

—whether there was a need to have a period of disqualification so as to protect the community from the offender’s driving;  and

—whether a period of disqualification would inhibit the offender’s rehabilitation.

1. The applicant submitted that the objective gravity of the offence in this case was in the lower range and that there had been no need for any additional punitive component to be placed upon the combination sentence that was imposed.  It was submitted that the applicant had an otherwise unblemished driving record and that he had driven for 18 months between the accident and his trial.  There was no need for a period of disqualification to protect the community.  In relation to rehabilitation it was submitted that the applicant accepted that he would have to be disqualified from obtaining a licence for some period after the conclusion of his time in custody but that the minimum period of disqualification of 18 months would be the period most conductive to his rehabilitation.  He lives in Oakleigh, but works in Preston and starts early in the morning.  He will have appointments to attend under the community correction order.  It was submitted that the additional burden of disqualification beyond the minimum was unwarranted.

1. Particular reliance in the applicant’s oral submissions was placed upon the judgment of this Court in Rodi v The Queen.[2]  One factor which led the Court to conclude that an erroneously excessive period of disqualification had been imposed in that case was the fact that the sentencing judge had given no reasons for an extensive period of disqualification. 

   [2][2011] VSCA 48 (‘Rodi’).

1. The respondent in its Written Case submitted that the period of disqualification had to be seen in the context of the sentence as a whole. It was submitted that, in the circumstances of this case, the judge was entitled to balance the combination sentence which he imposed with a period of licence disqualification which effectively ran for the entirety of the applicant’s sentence. The respondent relied upon the fact that pursuant to s 89B of the Sentencing Act the sentencing judge could have fixed a period of disqualification which commenced upon the applicant’s release from custody. 

1. In oral submissions counsel for the respondent emphasised that the sentence overall was not manifestly excessive.  Counsel accepted that the licence disqualification component of the sentence could be assessed discretely but submitted that it had to be assessed in the context of the sentence as a whole.  It was submitted that the leniency of the combination sentence imposed for this offence meant that there was a punitive element to the disqualification.  It was submitted that the burden of the disqualification contended for by the applicant amounted to little more than the inconvenience of having to take public transport.  It was not a case where the applicant’s employment, for example, required him to have a licence.

Analysis

1. In Rodi, this Court referred to both what Tadgell JA had said in Lefebure and also to what Callaway JA had said in R v Tran[3] in relation to this issue.

   [3](2002) 4 VR 457; [2002] VSCA 52 (‘Tran’).

1. In Tran, Callaway JA, citing an earlier judgment of Crockett J, said that the relevant considerations were the punitive element, in the context of the total punishment imposed;  the need to provide protection to the public;  and the need to examine the degree of dependency, particularly economic dependency, of the offender on the possession of a licence.  In relation to the relationship between a period of incarceration and a period of disqualification, Callaway JA adopted observations of Crockett J to the effect that the ‘effective deprivation’ imposed by licence disqualification is less when the period of disqualification runs whilst an offender is in custody and is greater when it does not.[4] 

   [4]Ibid 469–70 [39].

1. In the particular circumstances of this case, and notwithstanding that a year of the period of disqualification runs while the applicant is in custody, I have concluded that the period of disqualification imposed here was manifestly excessive.

1. In terms of punishment, in my opinion the combination sentence did sufficiently punish the applicant and, if the disqualification was intended to have an additional punitive effect, I would have expected the sentencing judge to expressly refer to that.

1. It does not seem to me that a period of disqualification was necessary in order to protect the community from the applicant’s driving.  The applicant has an otherwise unblemished driving record. 

1. Whilst the effect on the applicant’s rehabilitation may not be as significant as in some other cases, the inability to obtain a licence will be a burden to him both in his employment and in meeting his obligations under the community correction order.

1. The period of disqualification imposed here is double the minimum period required by the statute.  As was the position in Rodi, I am fortified in the conclusion that there has been an error by the absence of any expressed reason for the imposition of that period of disqualification.

1. In the circumstances I would grant leave to appeal on proposed ground 2.  I would allow the appeal and set aside the period of disqualification ordered by the sentencing judge.  In lieu thereof I would order that the applicant be disqualified from obtaining a Victorian driver’s licence or permit for a period of 18 months from 3 May 2019.

PRIEST JA:

1. I agree with Whelan JA.