Pesa v The Queen

[2012] VSCA 109

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0081

MICHAEL BRANKO PESA

Applicant

v

THE QUEEN

Respondent

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JUDGES	MAXWELL ACJ and HANSEN JA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 May 2012
DATE OF ORDERS	11 May 2012
DATE OF REASONS	4 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 109
JUDGMENT APPEALED FROM	DPP (Vic) v Pesa (Unreported, County Court of Victoria, Judge Taft, 28 March 2012)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Dangerous driving causing serious injury – Applicant drove through red light – Not guilty plea – No remorse – First trial miscarried – Bail pending retrial – Delay – Uncertainty – Total effective sentence 3y 6m, non-parole period 15m – Not manifestly excessive – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Limits of appellate review – Bare complaints about weight given to particular sentencing considerations – No complaint of specific error – Complaints about weight untestable – Treated as particulars of manifest excess ground – DPP (Vic) v Terrick (2009) 24 VR 457 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L W G Hartnett	C D Traill Lawyers
For the Crown	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ
HANSEN JA:

1. On the evening of 8 April 2007, the applicant drove through an intersection, against the red light.  He accelerated immediately before entering the intersection.  He collided with a vehicle which was turning right, across his path, as it was entitled to do following the change of lights.

1. The front seat passenger in the other vehicle was killed.  The driver was seriously injured.  The applicant was charged with one count of culpable driving causing death and one count of negligently causing serious injury.[1]  He pleaded not guilty to both counts.  After a trial in the County Court, he was acquitted of the charged counts and found guilty of the alternative counts of dangerous driving causing death (DDCD) and dangerous driving causing serious injury (DDCSI).[2]  He was sentenced as set out in the table below:[3]

   [1]The charges were laid under ss 318 and 24 of the Crimes Act 1958 (Vic) respectively.

   [2]For a discussion of the hierarchy of offences which can be charged when driving causes death or injury (or creates a risk of death or injury), see Gorladenchearau v The Queen [2011] VSCA 432, [13]–[21] (Maxwell P).

   [3]R v Pesa [2009] VCC 1829.

Offence	Maximum	Sentence	Cumulation
Dangerous driving causing death	5 y	3 y 6 m	Base
Dangerous driving causing serious injury	5 y	2 y	6 m
Total Effective Sentence:	4 y
Non-parole period:	18 m

1. Following a successful appeal, the convictions were quashed and the sentences set aside, and a retrial ordered.[4]  The retrial commenced on 30 January 2012.  The applicant was presented on one count of DDCD and one count of DDCSI.  He again pleaded not guilty.  The jury again found him guilty on both counts.  He was sentenced by Judge Taft as set out in the table below:

   [4]Pesa v The Queen [2011] VSCA 31.

Offence	Maximum	Sentence	Cumulation
Dangerous driving causing death	5 y	3 y	Base
Dangerous driving causing serious injury	5 y	18 m	6 m
Total Effective Sentence:	3 y 6 m
Non-parole period:	15 m

1. It can be seen that the individual sentences imposed on the second occasion were lower than the corresponding sentences imposed on the first occasion.  The total effective sentence was six months shorter, and the non-parole period three months shorter.

1. The applicant sought leave to appeal against sentence.  Because of the impending expiry of the non-parole period, the application for leave (filed 13 April 2012) was given an expedited hearing before a bench of two.  On 11 May 2012, at the conclusion of argument, we refused the application for leave and indicated that we would publish our reasons subsequently.  These are those reasons.

‘Failing to give proper weight to the issue of delay’

1. The applicant was 21 at the time he caused the fatal accident.  After being sentenced the first time, he served a period of 354 days’ imprisonment before being granted bail on 6 December 2010, prior to his – ultimately successful – appeal against conviction.  Judge Taft said of that period:

Whilst serving the sentence imposed at first instance you had difficulties coping with the prison system.  You have been treated for kidney stones and have been taken to hospital for scans for suspected cardiac irregularities.  I accept that your service of a prison term is particularly burdensome for you.[5]

[5]DPP (Vic) v Pesa (Unreported, County Court of Victoria, Judge Taft, 28 March 2012), [14] (‘Reasons’).

1. In the period after his release on bail, the applicant obtained employment and was given permission to drive.  He did not reoffend in the period leading up to the retrial, and there were no traffic infringements.  A report by Mr Ian Joblin, forensic psychologist, recorded that the prospect of a retrial meant that during this period the applicant ‘had difficulty stabilising, particularly with any career development.’  The applicant ‘felt that he might have to return to custody and that has been destabilising for him.’

1. Ground 2 is expressed in these terms:

The learned trial judge erred in failing to give proper weight to the issue of delay.

According to the written submission:

The delay has been inordinate.  He has not contributed to it in any way.  This period demonstrates actual rehabilitation as well as his future prospects of rehabilitation.  In all the circumstances it should have been given powerful mitigatory consideration.  It is submitted that the sentence reflects it was given little or no weight.[6]

[6]Reliance was placed on this Court’s decision in R v Merrett (2007) 14 VR 392.

1. No complaint of specific error is made.  Nor was there any suggestion in argument that the judge had overlooked delay as a relevant consideration or had misunderstood the facts relating to the delay or its impact on the applicant.  As the language of ground 2 makes clear, it is a bare contention that inadequate weight was given to delay as a mitigating factor.  The sentence imposed is said to reveal that delay was ‘given little or no weight’.

1. As this Court said in Director of Public Prosecutions (Vic) v Terrick,[7] the proposition that too much or too little weight was given to a particular sentencing factor is almost always untestable, because quantitative significance is not assigned to individual considerations.  In this sense, the ultimate sentencing decision is entirely opaque.  While the sentencing reasons record the judge’s consideration of the various matters relevant to sentence, the sentencing decision itself is a conclusion arrived at by the process of intuitive synthesis, without the attribution of weight to any individual factor.[8] 

   [7](2009) 24 VR 457, 459 [5].

   [8]Markarian v The Queen (2005) 228 CLR 357, 373 [37];  Scerri v The Queen (2010) 206 A Crim R 1, 5–6 [23]–[24].

1. The position is, of course, different where complaint is made that the judge overlooked a relevant consideration or made a specific error in describing the facts or evaluating their significance.  But, in the absence of such error, it is simply not possible to say of a particular sentencing factor that the judge attributed too much or too little weight to it.[9]  The only question which the appeal court can address in these circumstances is whether the sentence has been shown to be outside the range reasonably open to the judge, taking into account all the relevant sentencing factors.[10]  That has long been the view of this Court.[11]  Similar views have been expressed by other intermediate appellate courts in dealing with sentence appeals.[12] 

   [9]Va v The Queen [2011] VSCA 426, [18]–[19].

   [10]See Markarian v The Queen (2005) 228 CLR 357, 370 [25], citing House v The King (1936) 55 CLR 499, 504–5.

   [11]See, for example, R v Giles [1999] VSCA 208, [13] (Batt JA, with whom Phillips CJ and Chernov JA agreed).

   [12]See, for example:  Vagh v The State of Western Australia [2007] WASCA 17, [47];  Thorn v The State of Western Australia [2008] WASCA 36, [31]; Minehan v The Queen (2010) 201 A Crim R 243, 253 [60]; Reberger v The Queen [2011] NSWCCA 132, [64]; and R v Kikidis [2012] SASCFC 3, [32], [36].

1. It is important to emphasise that this is a point about the substance, not the form, of grounds of appeal.  The inability of an appellate court to discern the weight given to individual sentencing factors necessarily limits the scope of appellate review of a sentencing decision.  Specific error apart, questions of weight are for the primary decision-maker.[13]  It is important that this be understood, so that advice on the prospects of success of a sentence appeal is well-founded and so that the appeal against sentence is not used to re-argue the plea in mitigation.

   [13]R v Bernath [1997] 1 VR 271, 277; R v Kikidis [2012] SASCFC 3, [32].

1. Absent a complaint of specific error, therefore, a complaint which goes only to the weight given to a sentencing factor falls to be treated as a particular of a ground of manifest excess or manifest inadequacy.[14]  Counsel for the applicant properly conceded that this was so.  He accepted that the judge had squarely addressed the issue of delay in his sentencing reasons, and that the application could only succeed if it were shown that the sentences imposed were not reasonably open to the judge, taking all relevant circumstances (including delay) into account.

   [14]Rooke v The Queen [2011] VSCA 49, [26]; Singh v The Queen [2011] VSCA 317, [16].

1. We will return to this submission in dealing with ground 1.  As will appear, that ground in effect contended that the non-parole period was manifestly excessive.

Service of a prison term ‘particularly burdensome’

1. On the plea, the prosecutor conceded that the applicant could rely on what is commonly referred to as ‘Verdins 5’.  That is a reference to the fifth of the six propositions set out by this Court in R v Verdins,[15] namely, that impaired mental functioning from which a person is suffering at the date of sentence may mean that the experience of prison will be more burdensome than it would be for a person without that impairment.  Here, reliance had been placed on Mr Joblin’s description of the applicant as experiencing a ‘high level of anxiety’ and ‘quite apparent psychological depression’.

   [15](2007) 16 VR 269, 276 [32].

1. Once again, there is no complaint of specific error.  As noted earlier, the judge accepted that the service of a prison term was ‘particularly burdensome’ for the applicant.  The complaint is, once again, a bare complaint about weight.  For the reasons already given, this ground can only be addressed as a particular of a ground of manifest excess.

The offending was ‘mid-range’

1. Ground 1 was in these terms:

The learned trial judge erred in failing to sufficiently reflect his finding that the offending was mid-range in the fixing of a minimum term.

Counsel for the applicant accepted that this was, in effect, a contention that the non-parole period of 15 months was manifestly excessive.  He submitted that a non-parole period of 12 months ought to have been fixed.  When pressed, counsel accepted that, for this submission to succeed, he would need to establish that it was not reasonably open to the judge to fix a non-parole period higher than 12 months.  Once the contention is correctly formulated in this way, the difficulty of making it good becomes apparent.[16]

[16]DPP (Vic) v Karazisis (2010) 206 A Crim R 14, 44 [127]–[128]; Clarkson v The Queen [2011] VSCA 157, [89].

1. At the commencement of the plea, Judge Taft accepted that he should approach the sentencing task on the basis that the sentence originally imposed created an upper limit.[17]  Having had his attention drawn to sentences imposed in a number of cases involving both DDCD and DDCSI, his Honour concluded that the total effective sentence of four years’ imprisonment previously imposed was

at the higher end of sentences imposed for such offending, whereas your offending is more properly categorised as mid-range.  You have an impeccable driving history and you were not affected by alcohol or illicit drugs.[18]

[17]See in this regard McL v The Queen (2000) 203 CLR 452, 459 [23]; DPP (Vic) v TY (No 2) (2009) 24 VR 705, 722–723 [78]–[82].

[18]Reasons, [18].

1. The submission for the applicant accepted that his Honour’s categorisation of the offending was ‘wholly reflected in the six month reduction in the individual sentences’ for DDCD and DDCSI.  The complaint, however, was that the non-parole period had been reduced by only three months, meaning that the period on parole would be shorter than under the previous sentence.

1. Unsurprisingly, Judge Taft identified the key question on the plea as being whether the applicant, having been on bail pending the retrial, should be required to spend more time in custody.  Equally unsurprisingly, his Honour was concerned to explore with counsel the objective gravity of the offending.  As defence counsel drew attention to matters relied on in mitigation, his Honour said:

Leave to one side specific deterrence.  He’s got a good driving history, full stop.  He’s killed someone and seriously hurt another person.  He’s gone to trial.  What is not just punishment?  Demand some more time in jail?  The sentence on the bottom of 18 months can hardly be quibbled about in a case such as this.  One person has died as the result of Mr Pesa going through a red light and another man, in addition to losing his wife, has been very seriously injured himself.

I accept that specific deterrence has relatively little role if any, but just punishment, possibly general deterrence alongside it, has application.

Defence counsel did not demur. 

1. His Honour was right, in our view, to regard this as very serious offending.  Addressing the applicant, his Honour said:

You entered that intersection against a red light, having accelerated immediately before entering the intersection.  You could, and should, have stopped at the red light rather than accelerate.

The degree of dangerousness of the applicant’s driving was to be assessed by reference to the extent of the risk which it created.  The extent of the risk includes both the likelihood that something will go wrong, and the extent of the harm which will result if it does.[19]  In this case, accelerating through a red light created a grave risk of very serious harm.  Counsel for the applicant did not suggest otherwise.

[19]R v De Montero (2009) 198 A Crim R 68, 87 [55]; R v Towle (2009) 54 MVR 543, 563 [66].

1. Judge Taft concluded as follows:

All of those [mitigating] factors have some force and I am conscious that the delay in finalising this matter has been considerable.  However, in my view, the objective gravity of your conduct is substantial.  As a result of your driving, one life has been lost and the surviving widower was seriously injured.  I consider that just punishment and general deterrence require that I impose a further period of imprisonment, although I accept that this case has been hanging over you for some five years and has destabilised your life.[20]

[20]Reasons, [17].

1. The applicant was not, of course, entitled to a discount for pleading guilty, as he had contested the charges.  Nor had he expressed remorse or accepted responsibility for what the judge described as the ‘terrible consequences of your running a red light’.  On the contrary, the applicant maintained at all times – even on the plea – that the light had been amber.  He did so notwithstanding what his Honour said was ‘the overwhelming evidence from independent witnesses that you entered the intersection against a red light’.  At the same time, the judge accepted, the applicant had ‘genuine sympathy for those who were hurt’.

1. The non-parole period of 15 months represented only 36 per cent of the total effective sentence.  We agree with the Crown submission that this was ‘extremely lenient in the circumstances’.  We agree, moreover, that the sentence imposed gives no support to the contention that the judge gave inadequate weight either to the issue of delay or to the burdensome nature of imprisonment for the applicant.  The contention that the non-parole period was manifestly excessive was, in our view, not reasonably arguable.  No separate complaint was made about the total effective sentence.  It followed that leave to appeal had to be refused.

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