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:
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.
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).
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
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…
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- AGLC
- Pesa v The Queen [2012] VSCA 109
- Case
- [2012] VSCA 109
- Decision Date
CaseChat Overview and Summary
The primary issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court was required to determine if the sentence was within the limits of appellate review, specifically considering the weight given to particular sentencing considerations. Pesa argued that the sentence was manifestly excessive due to the delay and uncertainty caused by the mistrials and the bail pending retrial. The court considered the nature and circumstances of the offence, Pesa's lack of remorse, and the need for general and specific deterrence when determining the appropriate sentence.
The court held that the sentence imposed was not manifestly excessive. The judge had considered various factors, including the delay and uncertainty caused by the mistrials and the bail pending retrial. The court found that the total effective sentence of three years and six months, with a non-parole period of fifteen months, was appropriate in light of the circumstances. The court also noted that the weight given to particular sentencing considerations was not untestable and did not constitute a specific error. The court applied the principles from DPP (Vic) v Terrick, where it was held that complaints about the weight given to particular sentencing considerations are treated as particulars of manifest excess. As there was no complaint of specific error, the application for leave to appeal was refused.
The court did not grant leave to appeal, and the original sentence stood. The decision confirms the limits of appellate review in sentencing matters, where the court will not interfere with the sentence unless it is manifestly excessive. The court emphasised that complaints about the weight given to particular sentencing considerations are not sufficient grounds for appeal, unless there is a specific error. This case highlights the importance of considering the totality of the circumstances and the need for general and specific deterrence when imposing a sentence for dangerous driving causing death and serious injury.
Orders
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