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Pesa v The Queen

Pesa v The Queen

Case [2012] VSCA 109 11 May 2012

Appeal

Sentencing

Dangerous driving causing death

Dangerous driving causing serious injury

Criminal Law

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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).
[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

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…

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 Pesa v The Queen

Details

AGLC: Pesa v The Queen [2012] VSCA 109
Case: [2012] VSCA 109
Decision Date: 11 May 2012

CaseChat Overview and Summary

Pesa was involved in a serious motor vehicle accident, where he drove through a red light, resulting in the death of one person and causing serious injury to another. He was charged with dangerous driving causing death and dangerous driving causing serious injury. At his first trial, the jury was unable to reach a verdict, and a retrial was ordered. Pesa was released on bail pending the retrial. However, due to the delay and uncertainty, the second trial also failed. He was found guilty on both counts and sentenced to a total effective term of three years and six months, with a non-parole period of fifteen months. Pesa applied for leave to appeal against his sentence, which was ultimately refused by the court.

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