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Papagelou v The Queen

Papagelou v The Queen

Case [2022] VSCA 53 5 April 2022

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0065

STEPHEN PAPAGELOU	Appellant
v
THE QUEEN	Respondent

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JUDGE:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2022
DATE OF JUDGMENT:	5 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 53
JUDGMENT APPEALED FROM:	DPP v Papagelou [2021] VCC 411 (Judge Doyle)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Appellant with blood alcohol concentration of .075 — Drove against amber light turning red – Manoeuvred around stationary vehicle – Collision with deceased pedestrian crossing in disobedience to red pedestrian light – Sentenced to 4 years’ imprisonment with 2 years non-parole – Whether sentence manifestly excessive – Appeal allowed – Appellant resentenced to 3 years’ imprisonment with 18 months non-parole – Spanjol v The Queen (2016) 55 VR 350.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann QC	Theo Magazis & Associates
For the Respondent	Ms S Clancy	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

A little before 9.00 pm on Sunday, 18 November 2018, a vehicle driven by the appellant struck a pedestrian, Henry Ekselman, causing him injuries from which he later died.

Subsequently, on 25 March 2021, the appellant pleaded guilty in the County Court to a single charge of dangerous driving causing death.[1]
[1]Crimes Act 1958, s 319(1). The maximum penalty is 10 years’ imprisonment.

Following a plea in mitigation conducted on 25 March 2021, the judge sentenced the appellant on 12 April 2021 to four years’ imprisonment, and fixed a non-parole period of two years.[2] Further, the appellant’s driver’s licence was cancelled and he was disqualified for 19 months.[3]
[2]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have imposed a sentence of five years and six months’ imprisonment with a non-parole period of three years and four months.
[3]Sentencing Act 1991, s 89(1).

Pursuant to leave granted on 18 October 2021,[4] the appellant brings this appeal contending that the sentence is manifestly excessive.
[4]Papagelou v The Queen (Unreported, Court of Appeal, Priest JA, 18 October 2021) (‘Leave Reasons’).

For the reasons that follow, we would allow the appeal and resentence the appellant to three years’ imprisonment, upon which we would fix a non-parole period of 18 months.

The offending

For the sake of convenience, we adopt the description of the appellant’s offending in the Leave Reasons:

[6] Shortly after 5.15 pm, on Sunday, 18 November 2018, the [appellant] went to the Prince Alfred Hotel in Church Street, Richmond, with his wife, Marina Giosmas, and friends Christopher Kalogiannis, Jessica Hadjifotis, Bianca Ioannou and Leila Avini. He drank three ‘shots’ of spirits and three mixed drinks over two and a half hours. At 7.57 pm, the [appellant] and his friends walked to a nearby restaurant for dinner. They ate pizzas and shared a bottle of wine.
[7] At 8.42 pm, the [appellant]…

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 Papagelou v The Queen

Details

AGLC: Papagelou v The Queen [2022] VSCA 53
Case: [2022] VSCA 53
Decision Date: 5 April 2022

CaseChat Overview and Summary

The appellant, Papagelou, appealed against his sentence for dangerous driving causing death. The incident occurred when Papagelou drove against an amber light, which turned red as he attempted to navigate around a stationary vehicle. In doing so, he collided with a pedestrian who was crossing the road in violation of a red pedestrian light, resulting in the pedestrian's death. Papagelou had a blood alcohol concentration of .075 at the time of the incident. He was initially sentenced to four years’ imprisonment with a non-parole period of two years. The appeal centred on whether this sentence was manifestly excessive.

The central legal issue was whether the original sentence was manifestly excessive, taking into account the relevant statutory criteria and the principles of sentencing for dangerous driving causing death. The court needed to balance the gravity of the offence with the appellant's personal circumstances, including his culpability, remorse, and the need for deterrence and rehabilitation. The appellant argued that the original sentence was too severe, while the prosecution maintained that the sentence was appropriate given the circumstances.

The court, in considering the appeal, examined the statutory criteria and case law, particularly Spanjol v The Queen. It found that the original sentence did not adequately reflect the appropriate balance between the severity of the offence and the appellant's personal circumstances. The court highlighted Papagelou's otherwise unblemished record, his genuine remorse, and the fact that he had a relatively low blood alcohol concentration. The court determined that the original sentence did not sufficiently account for these mitigating factors. Consequently, the appeal was allowed, and Papagelou was resentenced to three years’ imprisonment with a non-parole period of 18 months.

The court’s final orders involved reducing Papagelou's sentence to three years’ imprisonment with an 18-month non-parole period, reflecting a more balanced approach to his culpability and personal circumstances. The court's decision underscored the importance of individualised sentencing that appropriately weighs the gravity of the offence against the offender's personal mitigating factors.

Orders