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Papachristodoulou v The Queen

Papachristodoulou v The Queen

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0060

ERIC PAPACHRISTODOULOU	Applicant
V
THE QUEEN	Respondent

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JUDGES:	KAYE JA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2017
DATE OF JUDGMENT:	9 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 284 Revision Date: 9 October 2017
JUDGMENT APPEALED FROM:	[2017] VCC 216 (Judge Campton)

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury (two charges) – Reckless conduct endangering persons – Driving motor vehicle – Sentence of four years and nine months’ imprisonment – Non-parole period of two years and nine months – Whether sentence manifestly excessive – Early guilty plea – Genuine remorse – Youthful and immature offender – Good character – General deterrence, specific deterrence and denunciation important – Leave to appeal refused - Harrison v The Queen; Rigogiannis v The Queen (2015) 49 VR 619.

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr T Kassimatis QC

with Ms S Seoud

James Harris Lawyers

For the Crown

Ms D Mandie

Office of Public Prosecutions

KAYE JA
T FORREST AJA:

The applicant pleaded guilty, before a judge in the County Court, to two charges of negligently causing serious injury, and one charge of reckless conduct endangering persons. He was sentenced to a total effective term of 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 9 months’ imprisonment.[1] The applicant seeks leave to appeal on the ground that the individual sentences on the two charges of negligently causing serious injury, the orders for cumulation between those charges, and the non-parole period fixed, are each manifestly excessive.
[1]DPP v Papachristodoulou [2017] VCC 216 (‘Reasons’).

The sentence, imposed on the applicant, was constituted as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1.

Negligently causing serious injury

10 years

3 years, 9 months

Base

2.

Negligently causing serious injury

10 years

3 years

9 months

3.

Reckless conduct endangering persons

5 years

12 months

3 months

Total effective sentence

4 years, 9 months’ imprisonment

Non-parole period

2 years, 9 months

Section 6AAA declaration

Total effective sentence: 6 years, 9 months

Non-parole period: 4 years, 6 months

The offending by the applicant occurred at Doncaster on 31 October 2015. The applicant was then 24 years of age. On that day, he was driving a Holden utility vehicle, with a friend, Bobbie Michalopoulous, as his passenger. While the applicant was driving south on Blackburn Road towards Doncaster Road, he was observed by another motorist, Anthony McDonald, who was driving behind the applicant’s vehicle, to deliberately cause the back end of his Holden utility to drift from side to side and to ‘fishtail’, causing the tyres to spin on the surface of the road on three separate occasions. As a result, on each occasion, the rear end of the Holden utility crossed the boundary line of the lane in which the vehicle was travelling, and Mr McDonald could hear the wheels of the applicant’s vehicle spinning…

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.

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Details

Case: [2017] VSCA 284
Decision Date: 9 October 2017

CaseChat Overview and Summary

The appellant, Papachristodoulou, was convicted of two counts of negligently causing serious injury and one count of reckless conduct endangering persons. These charges stemmed from an incident where the appellant drove a motor vehicle, resulting in serious injuries to two people. The County Court of Victoria sentenced him to four years and nine months’ imprisonment, with a non-parole period of two years and nine months. The appellant sought leave to appeal against his sentence, arguing that it was manifestly excessive.

The court had to determine whether the sentence imposed was manifestly excessive given the circumstances of the case. Key factors considered included the appellant’s early guilty plea, genuine remorse, his status as a youthful and immature offender, and his good character. The court also weighed the importance of general deterrence, specific deterrence, and denunciation in the context of the offences committed. In reviewing the sentence, the court applied principles established in previous cases such as Harrison v The Queen and Rigogiannis v The Queen, which emphasise the importance of proportionality and the circumstances of the offender.

The court found that while the injuries caused were serious, the sentence was not manifestly excessive. It recognised the appellant's early guilty plea, remorse, and good character but also considered the need for general deterrence and denunciation. The court was satisfied that the sentence appropriately balanced these factors and did not constitute a manifest excess. Consequently, the court refused the appellant's application for leave to appeal.

No further orders were made as the appeal against the sentence was dismissed.

Orders