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Koukoulis v The Queen

Koukoulis v The Queen

Case [2020] VSCA 19 14 February 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0116

GEORGIOS KOUKOULIS	Appellant
v
THE QUEEN	Respondent

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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)

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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.

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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:

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.

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

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.

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…

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 Koukoulis v The Queen

Details

AGLC: Georgios Koukoulis v The Queen [2020] VSCA 19
Case: [2020] VSCA 19
Decision Date: 14 February 2020

CaseChat Overview and Summary

In Koukoulis v The Queen, the appellant was convicted of dangerous driving causing death and sentenced to imprisonment, a community correction order, and a license disqualification. The appellant sought leave to appeal on the ground that the period of the license disqualification was manifestly excessive. The Court of Appeal was required to determine whether the sentence was longer than necessary to fulfil the purposes of punishment, rehabilitation, and protection of the community. The Court considered authorities such as Lefebure v The Queen, Rodi v The Queen, and R v Tran, and found that the original sentence was manifestly excessive in respect of the period of the license disqualification.

The Court noted that the purposes of sentencing include punishment, denunciation, deterrence, rehabilitation, and protection of the community. The Court held that the original sentence was manifestly excessive in respect of the period of the license disqualification, as it was longer than necessary to fulfil these purposes. The Court further held that the sentence imposed by the trial judge was not manifestly excessive in respect of the terms of imprisonment or the community correction order. The Court allowed the appeal and resentenced the appellant to a license disqualification of 18 months.

In light of the above, the Court set aside the original sentence and imposed a new sentence of a 12-month imprisonment term, a two-year community correction order, and an 18-month license disqualification. The Court held that this new sentence was appropriate in all the circumstances of the case, and that it fulfilled the purposes of sentencing in a proportionate and balanced manner. The appellant's application for leave to appeal against sentence was therefore allowed, and the original sentence was varied as set out above.

Orders