Pasznyk v The Queen

Case [2014] VSCA 87


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0175

JASON PAUL PASZNYK

Appellant

v

THE QUEEN

Respondent

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JUDGES

NETTLE, REDLICH and PRIEST JJA

WHERE HELD

MELBOURNE

DATE OF HEARING

6 May 2014

DATE OF JUDGMENT

8 May 2014

MEDIUM NEUTRAL CITATION

[2014] VSCA 87

JUDGMENT APPEALED FROM

R v Pasznyk (Unreported, County Court of Victoria, Judge Mulally, 13 February 2012)

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CRIMINAL LAW – Appeal – Sentence – Appellant convicted of culpable driving causing death by driving recklessly – Whether culpable driving by driving recklessly is a more serious form of the offence than other forms – Driving with a high blood alcohol reading at high speed – High moral culpability – Multiple prior convictions for drink-driving, speeding and other driving offences – Guilty plea – Sentence of 10 years and 6 months' imprisonment with a non-parole period of 8 years not manifestly excessive – Appeal dismissed.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr C T Farrington Robert Stary Lawyers
For the Crown Mr G J C Silbert QC Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

  1. This is an appeal by leave against a total effective sentence of 10 years and six months’ imprisonment with a non-parole period of eight years imposed on the appellant on pleading guilty to one charge of culpable driving causing death and one charge of driving a motor vehicle while disqualified.  It is contended that the sentence is manifestly excessive.

  1. As the sentencing judge observed, the subject offences were extremely bad examples of this kind of offending.  After drinking ‘Jim Beam’ bourbon and cola for more than four hours on the afternoon of 17 May 2010, and with a consequent blood alcohol concentration of .203 per cent (or, in other words, more than four times the legal limit) the applicant upon his own admission got into his car and drove while disqualified, recklessly at breakneck speeds of between 122 and 130 kph along the Melton-Gisborne Road until eventually he ploughed into the back of the deceased’s car travelling in front of him in the same direction at a speed of no more than 70 kph.  Such was the force of the impact that the deceased’s car exploded upon impact and the deceased was killed.

  1. Regrettably, the appellant was anything but a first-time offender.  As the sentencing judge recorded, he has an appalling history of driving offences, including prior convictions for exceeding the blood alcohol limit, refusing to undergo a breath test, driving at more than 30 kph over the speed limit, driving dangerously and carelessly, failing to stop at the scene of an accident, driving while disqualified and driving unlicensed.  He also has convictions for violence, including intentionally causing serious injury, assault and resisting police and drunkenness and damage to property.

  1. I need say no more of the effect of the subject offending on the victim than that, through no fault of his own, he has been deprived of what were likely to be the majority and best years…

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Pasznyk v The Queen [2014] VSCA 87
Case
[2014] VSCA 87
Decision Date

CaseChat Overview and Summary

The appellant, Pasznyk, appealed against his sentence imposed by the County Court, arguing that the 10 years and 6 months imprisonment with a non-parole period of 8 years was manifestly excessive. Pasznyk was convicted of culpable driving causing death by driving recklessly, having driven with a high blood alcohol reading at high speed. The victim, a pedestrian, was killed as a result of Pasznyk's actions. The appellant had multiple prior convictions for drink-driving, speeding and other driving offences. The appellant entered a guilty plea. The primary judge took into account the high moral culpability of Pasznyk's actions, his multiple prior convictions, and the circumstances of the offence in determining the appropriate sentence.

The primary issue before the court was whether the sentence imposed was manifestly excessive. The court considered whether the sentence was outside the range of sentences that could be imposed in the proper exercise of the sentencing discretion. The court also considered the relevant features of the offence, as well as the factors going in aggravation and mitigation. The court noted that the sentence was stern but was not outside the range of those properly open in the exercise of the sentencing discretion. The court also noted that the sentence reflected the high moral culpability of the appellant's actions, his multiple prior convictions, and the circumstances of the offence.

The court found that the sentence was not manifestly excessive and dismissed the appeal. The court noted that the sentence reflected the seriousness of the offence and the appellant's multiple prior convictions. The court also noted that the sentence was consistent with current sentencing practices for similar offences. The court held that the sentence was not outside the range of sentences that could be imposed in the proper exercise of the sentencing discretion.

The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the end, having regard to the relevant features of the offence and to those factors going in aggravation and mitigation, and further paying due heed to current sentencing practices, although I regard the sentence as stern I have concluded that it is not outside the range of those properly open in the proper exercise of the sentencing discretion. The sentence is not, in my opinion, manifestly excessive. Conclusion I would dismiss the appeal. ---

Ratio Decidendi

Legal Principle Established

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