Panourakis v The Queen
[2021] VSCA 259
•15 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0252
| ANASTASIA PANOURAKIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 September 2021 |
| DATE OF JUDGMENT: | 15 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 259 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1798 (Judge Tinney) |
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CRIMINAL LAW – Appeal – Sentence – Plea of guilty – Failing to stop after an accident – Driving whilst disqualified – Sentenced to two years six months’ imprisonment with one year four months non-parole period – Whether sentencing judge erred in finding applicant’s licence status was predominant reason for decision not to stop after the accident – Leave to appeal granted – Appeal allowed – Resentenced to 10 months’ imprisonment with two year community correction order – R v Storey [1998] 1 VR 359 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC | Tony Hargreaves & Partners |
| For the Respondent | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA:
The applicant pleaded guilty to one charge of failing to immediately stop at the scene of an accident in which she was the driver of a motor vehicle and where, owing to the presence of that vehicle, Vincenzo Fata was killed, which accident the applicant knew or ought to have known had occurred and had resulted in Mr Fata’s death or serious injury (‘failing to stop after an accident’). She also pleaded guilty to one summary charge of driving her vehicle on a highway while her authorisation to do so was suspended.
After a plea on her behalf, the applicant was sentenced as follows:
Charge on Indictment
Charge
Maximum Penalty
Sentence
Cumulation
1
Fail to stop after an accident
10 years’ imprisonment
2 years 6 months’ imprisonment
Base sentence
Summary Offence
Drive whilst disqualified
2 years’ imprisonment
7 days’ imprisonment
Nil
Total Effective Sentence
2 years 6 months’ imprisonment
Non-Parole Period
1 year 4 months’ imprisonment
Pre-Sentence Detention Declared
Nil
6AAA Declaration
4 years’ imprisonment with a non-parole period of 2 years 8 months’ imprisonment
Other Relevant Orders
All licences cancelled for a period of 4 years
S 464ZF Crimes Act 1958 sample
The applicant seeks leave to appeal her sentence on the following two grounds:
Ground 1:The Learned Sentencing Judge erred in his approach to the resolution of the factual issue that arose around the applicant’s decision not to stop after the accident.
Ground 2:The Learned Sentencing Judge erred in finding that the applicant’s licence status had a sizeable role in her decision not to stop following the accident.
Circumstances of offence
The charges arose out of an accident that occurred on 14 December 2017 at the intersection of Ferntree Gully Road and Huntingdale Road at Oakleigh East at around 1:30 pm. Shortly before the accident, the applicant had driven her black Mazda motor vehicle west on Ferntree Gully Road. She came to a stop at the intersection behind a Toyota Corolla sedan driven by Mr Fata, who was then 77 years of age. After the two vehicles had come to a stop, Mr Fata turned on the hazard warning lights in his vehicle, got out of his vehicle and walked to the back of it while pointing at the applicant’s vehicle. Differing accounts were given by witnesses as to what then occurred. One witness, Michael Bannister, observed Mr Fata becoming aggravated and almost threatening in the manner in which he pointed at the applicant’s vehicle. On the other hand, three other witnesses, Proveen Viswanathan, Eva Gyenes and Leigh Byrne, did not observe anything threatening or aggressive in the manner in which Mr Fata was behaving.
When Mr Fata was about 1.5 metres from the applicant’s vehicle, the traffic lights facing the two vehicles changed to green. The applicant then drove her vehicle to her right. As she did so, Mr Fata moved from behind his vehicle into the path of the applicant’s vehicle. At the same time, the applicant’s vehicle accelerated and the front passenger side of it collided with Mr Fata. As a result, he was carried or dragged a short distance before rolling onto the road surface. The applicant continued to drive in the right hand lane without stopping, accelerating in a westerly direction along Ferntree Gully Road. It was not alleged, on the plea, that at that point the applicant knew or ought to have known that Mr Fata had suffered serious injury.
The applicant’s vehicle then came to a stop behind stationary traffic at a red traffic signal at the intersection of Ferntree Gully Road and Dandenong Road. Mr Viswanathan, who had followed her, got out of his vehicle, approached the applicant, and said to her: ‘You hit him! He’s dying, how could you do that?’. The applicant replied: ‘I’m coming back’. It is at that point that it was accepted by the parties that the applicant had the requisite state of mind, namely, she knew or ought to have known that the accident had caused serious injury to Mr Fata. The applicant also said to Mr Viswanathan that she was pregnant and stressed, that Mr Fata had approached her vehicle in an angry manner, and that she was scared. When the lights turned green at the intersection, the applicant drove off without returning to the scene of the accident. It is that conduct that the prosecution alleged, and the applicant accepted, constituted the offence of failing to stop after an accident.
The applicant’s vehicle accelerated away from the intersection at a high speed. It was observed to be weaving in and out of traffic. The witness Leigh Byrne stated that the applicant’s driving at that point was ‘totally erratic’.
In the meantime, witnesses came to the aid of Mr Fata, and emergency services attended the scene within a short period. However, despite the best efforts of ambulance paramedics, he passed away while en route to hospital. An autopsy, that was subsequently performed, demonstrated that Mr Fata had died as a result of head injuries that he sustained in the motor vehicle accident.
The witnesses, who had observed the accident, had noted the registration number of the applicant’s vehicle and provided that information to the police. Inquiries by police established that the applicant had driven to her father’s address at Beach Road, Black Rock. The applicant herself was then residing with her husband in Clayton. Police attended at the Black Rock address at 3:10 pm. The applicant’s husband showed them to an upstairs room where they found the applicant lying on a couch. The applicant, who was then 23 weeks pregnant, was crying and holding her stomach. She appeared to be physically unwell. In the presence of police, she said to her family, who were present, that she should not have been driving. She was conveyed by ambulance to Sandringham Hospital for treatment, but was not admitted, and was discharged.
The applicant was subsequently transported to Bayside Police Station. On being interviewed, she admitted that she was in possession of the black Mazda vehicle and that she had driven that vehicle in the vicinity of her home address in the Clayton area. She otherwise exercised her right to answer ‘no comment’ in relation to any questions put to her relating to the collision and leaving the scene.
The applicant was initially charged with a number of offences, including dangerous driving causing death. A contested committal proceeding was conducted in December 2018 and the applicant was committed for trial. The applicant made an offer to plead guilty for failing to stop after an accident, on the basis that the other charges were withdrawn, but that offer was not accepted. Ultimately, the matter subsequently resolved on the basis that the applicant pleaded guilty to the two charges to which we have referred.
Victim impact statements
Mr Fata’s wife, Mrs Rita Fata, his daughters Roberta and Giovanna (Jo) and his son Luigi, each compiled victim impact statements that were read to the Court on the plea. They described, in moving terms, the profound and enduring grief that they had each suffered as a result of the loss of their beloved husband and father. The applicant was not to be sentenced for any aspect of her driving which led to Mr Fata’s death. Nevertheless, it is appropriate to acknowledge, as did the sentencing judge, the grief and suffering of Mr Fata’s closest family arising from his tragic loss.
The applicant’s history of offending
The applicant had one previous court attendance, in which she was fined $600 by the Moorabbin Justice Centre in April 2009 for driving while her authorisation was suspended, and fined $200 for using a hand-held telephone while her vehicle was in motion. She also had a quite substantial driving history that was set out in records held by VicRoads that were tendered on the plea.
The plea
The applicant was born in November 1985. After completing Year 12, she undertook a Bachelor of Health/Science degree which took some ten years for her to complete. During that time she had transferred to a different university. After graduating, she worked as a naturopath.
The principal mitigating factor relied on by the applicant concerned the circumstance that during her early twenties she had been twice subjected to sexual assaults which had resulted in her suffering post-traumatic stress disorder. It was contended on behalf of the applicant that the effects of those sexual assaults, and the applicant’s disorder, had influenced the manner in which she had departed from the scene after she learned that Mr Fata had been seriously injured. Accordingly, it was submitted that her moral culpability for the offending had been reduced.
The applicant suffered the first sexual assault when she was about 22 years of age. It took place in the context of her ‘recreational’ use of drugs. She had ingested an unknown substance which a friend gave to her, and while she was in a diminished state of consciousness, she was sexually assaulted. The second assault, which occurred about two years later, occurred under similar circumstances. On that occasion, the applicant was sexually assaulted by her aunt’s boyfriend when, having used drugs, she had fallen into a semi-conscious state.
The applicant had a relationship with another man before she met her husband. The relationship was quite turbulent. In 2006, the applicant made an attempt at self-harm by an overdose of paracetamol as a result of the problems which she experienced in that relationship. Ultimately, the relationship ended shortly after that event.
The applicant subsequently commenced a relationship with her present husband in 2013. They married in 2016. As we have noted, she was 23 weeks pregnant at the time of the accident. Subsequently, she gave birth to a son who, at the time of sentence, was two and a half years of age.
The applicant has a significant history of psychological disturbance. She was under the care of a psychiatrist between 2003 and 2006. As noted, she had responded to stresses in her first relationship by engaging in self-harm, taking an overdose of paracetamol, for which she needed emergency medical care. Subsequently, she consulted Mr Frank Zoumboulis, a psychotherapist, for a period of about ten years. Their sessions focussed on addressing issues associated with her experience of sexual assault.
Subsequent to the accident that was the subject of this case, the applicant, in March 2019, became intensely distressed in the context of an argument with her husband. She took hold of a knife and threatened to stab herself in the throat. As a consequence, she was transported by ambulance to hospital where she was assessed and discharged. Follow up care was provided by Mr Zoumboulis and her general practitioner.
The applicant was assessed by Mr Patrick Newton, a clinical and forensic psychologist, on two occasions in August 2020 and October 2020, for the purposes of the plea. Having taken a detailed personal history from the applicant, and conducted a mental health assessment, Mr Newton concluded that the applicant was experiencing a range of residual problems related to the sexual assaults to which she had been subjected in her early and mid-20s. Mr Newton noted that, in the years that followed, the applicant had only slowly regained a tenuous feeling of safety and autonomy, but that feeling was quite fragile, so that minor challenges could trigger experiences of trauma for her. Based on the applicant’s description of the collision and the events leading to it, Mr Newton considered that it was likely that the applicant perceived Mr Fata to be threatening and confronting. That perception would have evoked a particularly intense response on the part of the applicant, which was redolent with the feelings of distress, fear and helplessness that had characterised her earlier experiences of sexual assault. In those circumstances, Mr Newton considered that the applicant’s heightened anxiety would have made it difficult for her to exercise her usual judgment and reasoning skills. He considered that her sense of fear and apprehension would have overwhelmed her consideration of other aspects of the situation, and that she would have had difficulty reasoning about the experience with ‘calm composure and settled reflection’.
Mr Newton was of the opinion that the applicant probably met the criteria for Post-Traumatic Stress Disorder (‘PTSD’) in the period following the sexual assaults. However, his clinical examination indicated that she did not currently meet the criteria for that disorder which was then in partial remission.
Mr Newton further considered that the applicant’s main rehabilitative needs were for ongoing treatment to address her anxiety and other interpersonal effects of the earlier sexual assaults. He anticipated that if the applicant received a prison sentence, she would experience a more serious emotional response to imprisonment than is typical. Thus, her experience of prison would be more onerous.
On the plea, counsel for the applicant also tendered a report from the applicant’s general practitioner, who noted that the applicant had suffered PTSD, chronic anxiety and depression following the accident. Counsel also tendered two reports from Mr Zoumboulis. In those reports, Mr Zoumboulis stated that the applicant had attended regular ongoing fortnightly psychotherapy appointments with him, and that she continued to address personal issues connected to the traumatic events of 14 December 2017. He noted that she showed appropriate signs of remorse about the accident, but that she continued to suffer some post-traumatic stress while managing major depressive and postpartum depression.
Based on that material, counsel for the applicant submitted, on the plea, that the judge should accept that the applicant’s response to the accident, by departing the scene, was not driven by self-interest, but rather was the product of feelings of fear and anxiety that had their genesis in the PTSD caused by the two previous sexual assaults to which she had been subjected. In particular, it was submitted, the judge should accept that due to her past experiences, the applicant would have perceived Mr Fata to have been acting in a threatening attitude towards her when he approached her vehicle shortly before the accident. Counsel supported that submission by reference to the evidence of Mr Bannister. He also relied on observations made by the police who attended the applicant’s father’s house, and observed her to be crying heavily holding her stomach and to be physically unwell. In addition, counsel referred to the description given by the ambulance officer as to the applicant’s significant level of distress when she attended the applicant. Based on that material, counsel submitted that the judge should accept the opinion given by Mr Newton, that at the time at which the applicant departed from the scene, her capacity for calm and reasoned judgment had been affected as a result of the underlying effects of the sexual assaults to which she had suffered in her early 20s.
In addition to those matters, counsel relied on a number of other mitigating factors. In particular, he relied on the plea of guilty which he submitted was made at the first reasonable opportunity, after the prosecution finally agreed not to persist with the charge of dangerous driving causing death. Counsel submitted that the plea of guilty was accompanied by remorse. In addition, the applicant had a limited previous criminal history. He relied on the evidence of Mr Newton that a term of imprisonment would be more burdensome for the applicant, both as a result of her underlying psychological condition, but also because she would be separated from her young son. In addition, counsel referred to the lengthy period of delay in which the serious charges had been hanging over the applicant. He submitted that the applicant had already suffered significant punishment as a result of the accident. Finally, it was submitted that the applicant had positive prospects of rehabilitation.
Reasons for sentence
In his comprehensive reasons for sentence, the judge commenced by addressing the mitigating factors relied on on behalf of the applicant.[1] He accepted that the applicant had pleaded guilty at the earliest practicable stage.[2] His Honour accepted that the plea constituted early acceptance by the applicant of responsibility for her crime, and that by pleading guilty she had facilitated the course of justice. The community had been saved the time, cost and effort associated with a trial and witnesses had been spared the experience of giving evidence at trial.[3] The judge also accepted the applicant was genuinely remorseful, and that her actions were alien to her caring and compassionate nature as described in a number of character references.[4]
[1]DPP v Panourakis [2020] VCC 1798 (‘Reasons’).
[2]Ibid [59].
[3]Ibid [60].
[4]Ibid [62].
His Honour also took into account the significant period of delay in the disposition of the charges against the applicant. During that time, the applicant had stayed out of trouble and attempted to reorder her life. The judge accepted that the applicant had been deeply affected by the circumstances of the offence, and that her risk of reoffending was low. In that respect, he regarded the applicant’s future prospects to be ‘very good if not excellent’.[5]
[5]Ibid [66]–[72].
The judge also accepted that, in view of the stringent restrictions imposed on prisoners arising out of the current COVID-19 pandemic, prison life would be tough for the applicant, with less time out of her cell, less access to programs, and no access to in-person visits. He noted that sending a first-time parent with a young child to prison would itself increase the burden of imprisonment.[6] Thus, he took into account the fact that the applicant would be separated from her young son if sent to prison.[7] The judge accepted, based on the evidence of Mr Newton, that both the applicant’s mental health issues, and her separation from her son, would increase the burden of custody and would therefore enliven the mitigating factor described as the ‘fifth limb’ of R v Verdins.[8]
[6]Ibid [76].
[7]Ibid [79].
[8](2007) 16 VR 269, 276 [32]; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’); Reasons [81].
The judge then turned to the submissions made by counsel for the applicant as to her state of mind at the time at which she departed from the scene of the accident. His Honour referred to Mr Newton’s opinion that, due to her past experiences and the underlying PTSD, she would be likely to have perceived Mr Fata to be threatening and confronting to her, and that her heightened feelings of distress and anxiety had impacted on her capacity to exercise her usual judgement and reasoning skills. His Honour stated ‘I accept [Mr Newton’s] opinion up to a point.’[9]
[9]Reasons [94] (emphasis in original).
His Honour then stated:
It may well have explained why you would have tried to drive past or around this person at the first intersection. But you knew you had struck him with your car at that point. Mr Dann conceded you knew that. You then left him behind you, travelling across the intersection in your car. I am not dealing with you for a crime at that point. Undoubtedly though, striking him with your car would have produced a level of panic. You knew you had no business being on the road at all. You were suspended from driving and knew that fact.
Some distance down the road as you drove away from that collision site, you were then fixed with knowledge that this man was seriously injured. Another motorist got out of his car and told you that the man you had struck was dying. You were several hundred metres away.
You told that motorist who had got out of his car that you were coming back. You did not. You continued to drive. At that point, you knew you had been involved in what, on any view of it, was a serious incident and that you were suspended as a driver. That was an obvious stressor and I have no doubt at all that it, your licence status, had a sizeable role in your panicked state and your decision at that point not to stop. I am satisfied of that beyond reasonable doubt.[10]
[10]Ibid [95]–[97] (emphasis in original).
Having reached those conclusions, the judge then stated:
I am then prepared to accept that the post-traumatic stress disorder had some role to play in this event. I certainly don’t accept that it had a dominant role. If it heightened your anxiety at the time of the approach to the car and I am prepared to find that it did, it is not realistic to think that this sense would have altogether dissipated or that you were fully in control of your judgment a short distance up the road when Mr Viswanathan spoke to you. You were still saying you were stressed. However, I have no doubt that a good deal of the stress at that point arose from your knowledge that you were a suspended driver who had been involved in a serious incident. So, in a way I accept neither counsel’s submissions. I do not accept your counsel’s submission that (1) the post-traumatic stress disorder was the central cause and (2) that your suspended status had no role to play in your failure to stop. I am satisfied beyond reasonable doubt that your licence status had a good deal to do with your response at the critical point. That is not to say you were thinking clearly. You weren’t. You were panicking and a component of that I put down to your post-traumatic stress disorder. I am satisfied beyond reasonable doubt that a large component related to your licence status and just the general and understandable confusion and stress and panic arising from such an event as this. It was a nightmare, as you were later to say to the police. A number of the cases that I have looked at speak of panic being almost an invariable feature of this sort of crime. Of course it is and it was here, and that was not driven by your post-traumatic stress disorder. Virtually no-one committing this crime, that is failing to stop, is acting in a calm and rational manner or exercising optimum judgement. You had the aspect of your post-traumatic stress disorder and the understandable normal panic but on top of that you knew you were suspended. As I say, I am satisfied beyond reasonable doubt that this had a large role to play in your panic and your reprehensible decision not to stop.[11]
[11]Ibid [100] (emphasis in original).
Accordingly, the judge rejected the submission by the prosecution that the applicant’s PTSD had no role at all and that there should be no reduction in her culpability.[12] He reiterated that he could give some ‘limited weight’ to the ‘first limb’ of Verdins, so that there would be a modest reduction in his assessment of the applicant’s culpability, as well as some moderation in the application of the sentencing purposes of general deterrence and specific deterrence.[13]
[12]Ibid [101].
[13]Ibid [102].
The judge noted, in respect of the summary offence, that the applicant had no good reason to driving the vehicle and that she had taken a calculated risk by doing so.[14] He considered that the weight to be given to specific deterrence could be moderated due to his favourable view as to the applicant’s future prospects.[15] On the other hand, general deterrence was a ‘highly relevant’ purpose notwithstanding that some moderation was appropriate in view of the ‘third limb’ of Verdins.[16]
[14]Ibid [107].
[15]Ibid [102].
[16]Ibid [120].
The judge rejected the submission by counsel for the applicant that she should be released on a community correction order. He considered that the circumstances of the case did not permit him to make such an order. In particular, such a disposition would not meet the relevant sentencing purposes, in particular, general deterrence. Nor did his Honour consider that it would be appropriate to sentence the applicant to imprisonment for a period of no more than twelve months combined with a community correction order.[17]
[17]Ibid [158]–[161].
Grounds 1 and 2: submissions
Under grounds 1 and 2, counsel for the applicant submitted that it was not open to the judge to be satisfied that the principal motivation for the decision of the applicant to drive away from the scene, after she had spoken with Mr Viswanathan, was her desire to escape the consequences of the fact that she had been driving while her licence was suspended. Rather, counsel submitted, the judge erred in failing to accept that the applicant’s decision to continue to leave the scene of the accident was driven by her feelings of distress and fear which were the product of her fragile psychological state.
Counsel commenced by referring to the evidence of Mr Newton that the applicant, who had been subjected to two previous sexual assaults, had developed PTSD, so that she was a person who was apt to experience particularly intense feelings of distress at times of conflict, and to respond to minor levels of confrontation with overwhelming feelings of fear. The applicant was 23 weeks pregnant at the time of the incident. Counsel noted that, in the course of the plea, the prosecutor accepted that when the applicant was confronted by Mr Fata at the intersection of Ferntree Gully Road and Huntingdale Road, her immediate reaction, to leave the scene, was caused by feelings of fear, albeit that they may not have been justified. The judge, in his reasons for sentence, accepted that that might well have explained why the applicant drove from the scene of the accident.
Counsel noted that there was a substantial body of evidence that the applicant’s distressed state did not abate for some time after she had left the scene. In particular, the applicant was observed to be in a very distressed state when she attended her parents’ house after the accident. In that respect, counsel referred to the observations of the applicant’s mother and husband as to the level of distress that she was then experiencing. Detective Senior Constable Emily Fryters, who attended the house, observed that the applicant was physically unwell, that she was crying heavily and holding her stomach. The ambulance paramedic, Dinah Boswell, described the applicant as appearing to be very distressed and upset. Counsel also relied on the opinion of Mr Newton that the applicant at the time had suffered a particularly intense response following her interaction with Mr Fata, and that her response had been driven by feelings of distress and anxiety. In that respect, counsel noted that the prosecution did not seek to cross-examine Mr Newton or to challenge the opinion that he had expressed in his report.
Counsel noted that the judge relied, in part, on the fact that the applicant had driven to her parents’ house, instead of immediately seeking help or attending her own home in Clayton. However, counsel noted that the applicant’s husband and her mother had both stated that they had advised the applicant to go to her parents’ residence rather than to return to the scene of the accident. Accordingly, it was submitted, her decision to drive to her parents’ house should not have been regarded by the judge as being inconsistent with, or undermining, the description of her emotional state given by her mother and husband, or the opinion of Mr Newton.
In those circumstances, it was submitted that it was not reasonably open to the judge to be satisfied, beyond reasonable doubt, that the applicant’s concern about her licence status had played a sizeable role in her decision not to stop in the vicinity of the accident scene. Counsel further contended that it was not reasonably open to the judge to exclude the proposition that because of the applicant’s overwhelming feelings of distress, her licence status had played only a limited, if any, role in her decision not to stop in the vicinity of the accident scene.
In response, counsel for the respondent submitted that it was reasonably open to the judge to find, as his Honour did, that the applicant had ‘mixed motives’ in her decision to depart from the scene. The fact, that the applicant’s decision-making might have been motivated in part by an irrational level of fear of Mr Fata, did not preclude the judge being satisfied, as an aggravating circumstance, that the applicant was predominantly motivated by a concern that she would be detected having driven while her licence was suspended. In particular, counsel noted that the agreed basis, upon which the applicant had pleaded guilty, was that she committed the offence, of failing to stop after the accident, after her conversation with Mr Viswanathan at the intersection of Ferntree Gully Road and Dandenong Road. In that conversation, the applicant was told that she had hit Mr Fata and that Mr Fata was dying. In those circumstances, it was open to the judge to conclude that any basis that the applicant had to fear Mr Fata must have abated with her knowledge that Mr Fata was seriously injured. In that respect, counsel noted that Mr Newton’s report did not refer to the conversation between the applicant and Mr Viswanathan and how it may have affected the applicant’s stated fear of Mr Fata at the time at which she departed from the scene.
Counsel for the respondent further noted that when Mr Viswanathan spoke to the applicant, she told him ‘I’m coming back’. Thus, the applicant was aware, at that point, of her obligation to return to the scene of the accident. She also knew that she should not have been driving at the time of the accident. In those circumstances, in which Mr Fata clearly posed no threat to the applicant, it was submitted that the conclusion was inescapable that, when the applicant drove away, she must have been motivated to a substantial degree by her concern about her licence status. Counsel noted that, when police subsequently attended the applicant’s parents’ home, the applicant stated to her family that she should not have been driving.
Counsel for the respondent then addressed the argument made on behalf of the applicant concerning her decision to drive to her parents’ house, rather than return to the scene of the accident or to remain where she was after she had spoken on the telephone to her husband and her mother. In that respect, counsel noted that the observations made by the judge, concerning that aspect of the applicant’s decision, were not essential to the judge’s ultimate conclusion. Further, the judge’s reasoning, in relation to the telephone conversation, was not erroneous. In particular, it was submitted, the contents of the telephone conversation that the applicant had with her mother and husband did not logically affect the judge’s conclusion that the applicant was motivated by her concern about her status as a driver whose licence had been suspended at the time at which she departed from the scene.
Analysis and conclusion
Both grounds of appeal are directed to the conclusion by the judge as to the reason why the applicant left the scene of the accident after she had learnt, from Mr Viswanathan, that Mr Fata had been seriously injured in the accident that had occurred at the intersection of Ferntree Gully Road and Huntingdale Road. In particular, the grounds impugn the conclusion by the judge that when the applicant left the scene after speaking to Mr Viswanathan, her predominant motivation derived from her knowledge that she was ‘a suspended driver who had been involved in a serious incident’.[18]
[18]Ibid [100].
That finding by the judge was of a factor which aggravated his Honour’s assessment of the applicant’s offending. In order to act on that basis, the judge was required to be satisfied beyond reasonable doubt that it was that factor that was the predominant motivation of the applicant in departing from the scene.[19] The critical question then is whether it was reasonably open to the judge to be satisfied beyond reasonable doubt of that fact.
[19]R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
In addressing that question, the starting point is the unchallenged diagnosis of Mr Newton that, as a result of the two sexual assaults to which the applicant had been subjected, she had developed a post-traumatic stress disorder, the effect of which was to cause the applicant to perceive the world as a ‘dangerous and unpredictable place’. Mr Newton was of the view that even minor challenges to her, particularly by men with whom she was not acquainted, could lead her to react with ‘overwhelming feelings of distress’. In those circumstances, Mr Newton considered that it was likely that the applicant had perceived Mr Fata to be acting in a threatening and confronting manner when he approached her vehicle at the intersection of Ferntree Gully Road and Huntingdale Road.
It was based on that evidence that the prosecutor, in the course of the plea, accepted that the applicant might have misinterpreted the actions of Mr Fata, and that she might have perceived him to be acting in a ‘threatening and confronting’ manner at the scene, causing her to drive away from that scene. We interpolate that that concession by the prosecutor was entirely appropriate and was well justified on the evidence. It was supported by the observations by Mr Bannister as to how he perceived the conduct of Mr Fata. Further, it is apparent that the judge, in his reasons for sentence, accepted the concession so made by the prosecution. His Honour considered that the explanation given by Mr Newton may well have been why the applicant drove away from the intersection of Ferntree Gully Road and Huntingdale Road after the collision.[20]
[20]Reasons [94]–[95].
The question, then, is whether it was reasonably open for the judge to be satisfied, beyond reasonable doubt, that after the applicant spoke with Mr Viswanathan at the intersection of Ferntree Gully Road and Dandenong Road, the feelings of agitation, distress and fear, engendered in her at the previous intersection, had dissipated to the extent that they no longer constituted her major motivation in departing from the scene of the accident, but that, rather, that motivation was derived from her concern that she had been involved in a serious incident while driving while her licence was suspended. In particular, the question is whether it was open to the judge to be satisfied, beyond reasonable doubt, that the applicant’s licence status ‘had a good deal to do with [her] response at the critical point’.[21]
[21]Ibid [100] (emphasis omitted).
On analysis, there are a number of difficulties with the conclusion by the judge to that effect. First, it must be remembered that Mr Viswanathan spoke to the applicant only a short period of time after the accident, and after she had driven away from the intersection of Ferntree Gully Road and Huntingdale Road. It was improbable, to say the least, that in that short space of time the applicant’s intense feelings of fear and distress had dissipated to the extent that they no longer were the predominant driving cause of her departure from the scene of the accident. Secondly, and connected with that, it is significant that when the applicant spoke with Mr Viswanathan, she said to him that she was pregnant and stressed, that Mr Fata had approached her vehicle in an angry manner, and that she was scared. It was at that point that the applicant then drove off from the intersection of Ferntree Gully Road and Dandenong Road without returning to the scene. While, it must be noted, the applicant had also said that she would be returning to the scene, nevertheless the important point is that her feelings of fear and stress remained quite palpable.
The third consideration concerns the conversations that the applicant had with her mother and her husband while she was en route to her parents’ home in Black Rock. The applicant’s mother provided a letter that was tendered on the plea, in which she said that on the day of the accident the applicant telephoned her in a state of sheer panic, and explained to her mother that she feared for her own safety and the safety of her unborn child. She told her mother that she had driven off from the scene in that state of panic. It was then that the applicant’s mother advised her to drive to her [the mother’s] home so that she could calm the applicant down and call the police. In similar terms, the applicant’s husband, Mr Peter Laspas, provided a detailed letter of reference that was tendered on the plea. In it he said:
When my wife Anastasia called me after the alleged incident around 1.45-2.00pm I was deeply concerned that my wife may have miscarriage or going into shock, she was crying and I could only make sense of every second word she was telling me. I stressed the importance of her going somewhere we (sic) she is safe, and mentioned to go to her parents’ house at … Beach Road, Black Rock.
The judge placed substantial weight on the circumstance that after the applicant had spoken to her mother and husband, she nevertheless continued to drive to her parents’ home, rather than stopping her vehicle, going to her own home, or going to the police station. In particular, the judge was of the view that, if the applicant was then in such a distressed state, she would have been advised by her mother and husband ‘to stop there and then’.[22]
[22]Ibid [87].
As we have noted, when the applicant’s mother and husband spoke to the applicant on the telephone, they each perceived that she was then in a particularly distressed and emotional state. They were both concerned as to her condition, and it was that concern that led them to advise the applicant to go to her parents’ home. Based on the material that was placed before the judge, in our view, the circumstance that the applicant’s mother and husband gave her that advice confirmed, rather than detracted from, the evidence that the applicant’s initial feelings of intense fear and distress, when she had been approached by Mr Fata, had not subsided to any material extent.
It was in that context that the observations made by a number of persons, as to the applicant’s emotional state when she arrived at her parents’ house, were particularly relevant. Mr Laspas described her as ‘crying, vomiting in a state of panic and shock, something I have never witnessed before’. She was struggling to breathe properly and was crying profusely. The applicant’s mother, in her reference, stated that when the applicant arrived at her parents’ home, the applicant fainted and vomited twice. The evidence of the police, who attended the home, was that the applicant appeared to be physically unwell, and that she was crying heavily and holding her stomach. As we have noted the ambulance paramedic also described the applicant as being very distressed and upset. In those circumstances, as a result of concerns about the risks associated with the applicant’s pregnancy, a decision was made that she be transferred to hospital.
That evidence is relevant because it demonstrated that the level of distress, which, Mr Newton considered, caused the applicant to leave the first scene (at the intersection of Ferntree Gully Road and Huntingdale Road) did not dissipate, but it would appear, if anything, it had intensified. It is significant that when she spoke to Mr Viswanathan, and subsequently to her mother on the telephone, the applicant stated that she was frightened for her own safety and (when she spoke to her mother) for the safety of her unborn child.
Based on that evidence, we do not consider that it was reasonably open to the judge to conclude, beyond reasonable doubt, that notwithstanding that the applicant drove away from the first scene (at the intersection of Huntingdale Road and Ferntree Gully Road) motivated by fear and distress, she committed the offence in question, by departing from the intersection of Ferntree Gully Road and Dandenong Road after speaking to Mr Viswanathan, predominantly because of a concern about her licence status. For the reasons that we have outlined, we do not consider that it was reasonably open to the judge to be satisfied, beyond reasonable doubt, that that motive was the predominant reason why the applicant committed the offence by departing from the scene after speaking to Mr Viswanathan. In short, it was not open to the judge to exclude, as a reasonable possibility, that the applicant departed from the scene as a result of being overwhelmed by the feelings of fear and distress described by Mr Newton.
Further, we consider that on the evidence, and in view of the acceptance by the judge that that emotional state was the reason why the applicant initially drove away from the intersection of Huntingdale Road and Ferntree Gully Road, the only reasonable conclusion, on the balance of probabilities, was that the applicant’s departure after she had spoken to Mr Viswanathan was due to the same factor. In that respect, the analysis by Mr Newton was not challenged, and he was not cross-examined at the plea hearing. Mr Newton stated:
Based on her discussion of the collision and the events leading up to it, it would seem likely that Ms Panourakis perceived the deceased man as threatening and confronting … In turn this perception would have been expected to evoke a particularly intense response on Ms Panourakis’ part — redolent with the feelings of distress, fear and helplessness that had characterised her earlier experiences of sexual assault. Such heightened anxiety would have been likely to have made it difficult for Ms Panourakis to exercise her usual judgment and reasoning skills. Not only would I expect her sense of fear and apprehension to have overwhelmed her consideration of other aspects of the situation, but I would also anticipate she would have had difficulty reasoning about her experience with calm composure and settled reflection. This would have been so both on account of the severity of the anxiety she was experiencing and her circumstances (being alone in a car) in which she experienced it. These impairments are likely to have compromised her decision-making abilities when she left the scene of the collision in order to seek the ‘safety’ she desired at her parents’ residence.
It follows that the applicant has established the specific errors in the judge’s reasons for sentence that are the subject of grounds 1 and 2 of the notice of application for leave to appeal against sentence. In those circumstances, the application for leave to appeal should be granted, the appeal allowed, and the sentences imposed on the applicant should be set aside.
Resentence
As a consequence, the sentencing discretion is reopened. It therefore falls to this Court to re-sentence the applicant, based on our conclusion, on the balance of probabilities, that the principal reason why the applicant departed from the scene of the accident, after she had learnt from Mr Viswanathan that Mr Fata had been seriously injured, derived from her intense feelings of fear and distress which had as their basis the residual effects of the post-traumatic stress disorder that she had sustained due to the sexual assaults to which she had previously been subjected.
In re-sentencing the applicant, it is sufficient to act on the basis of the mitigating circumstances found by the judge. In particular, the applicant pleaded guilty at the earliest practicable stage in the proceeding. Her plea constituted an early acceptance by her of responsibility for her criminal action, and by pleading guilty she had facilitated the course of justice. Plainly, the plea had particular utilitarian value. In addition, the judge accepted that the applicant was genuinely remorseful. It is clear, from the number of character references tendered on her behalf, that the applicant’s actions on the date were quite inconsistent with her caring compassionate and generous nature which was described in those references. Further, there had been significant delay in the disposition of the charges against the applicant. During that time, the applicant had suffered particular stress. Further, as the judge accepted, in view of the stringent restrictions to which the applicant has been subjected in prison arising out of the current COVID-19 pandemic, prison life has been particularly difficult for her. In that respect, it is relevant that the judge accepted the evidence of Mr Newton that the applicant’s mental health issues, and her separation from her son, would increase the burden of a term of imprisonment on her. Finally, it is appropriate to take into account the judge’s assessment that the applicant’s prospects were ‘very good if not excellent’.[23]
[23]Ibid [72].
Taking those matters into account, and giving full weight to the serious nature of the charge, we consider that the appropriate disposition in the present case is that the applicant should be sentenced to a term of imprisonment equivalent to the period in which she has already been in custody, namely, ten months, and that she should be subject to a community correction order for a period of two years.
Summary of conclusions
For the foregoing reasons we have reached the following conclusions:
(1)The application for leave to appeal is granted, and the appeal allowed.
(2)The sentence imposed by the County Court judge is set aside. In lieu, the applicant is sentenced to ten months’ imprisonment on the charge of failing to stop her motor vehicle after an accident. The sentence on the summary charge, and the order for concurrency in respect of it, are affirmed. The applicant is therefore sentenced to a total effective sentence of ten months’ imprisonment, and the applicant is further sentenced to a community correction order of two years.
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