R v Livas (No 2)

Case [2020] ACTSC 116

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Livas (No 2)

Citation:

[2020] ACTSC 116

Hearing Date:

24 April 2020

DecisionDate:

8 May 2020

Before:

Mossop J

Decision:

See [63]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – culpable driving causing death –  negligence – death of a child – offender was a professional truck driver – undiagnosed sleep apnoea – on notice as to possible sleep apnoea and failed to attend referrals – failed to inform employer of possible diagnosis – prior criminal history – full-time imprisonment

Legislation Cited:

Crimes Act 1900 (ACT), s 29

Road Transport (General) Act 1999 (ACT), ss 62, 65

Cases Cited:

Board v The Queen [2013] VSCA 190

Director of Public Prosecutions v Oates [2007] VSCA 59; 47 MVR 483

Director of Public Prosecutions (Vic) v Borg [2016] VSCA 53; 258 A Crim R 172
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
R v Creighton (unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 28 October 2010)
R v Kekalainen [2014] ACTSC 132
R v Livas [2015] ACTSC 50
R v Livas (unreported, Supreme Court of the Australian Capital Territory, Teague AJ, 16 November 2010)
R v Richardson [2016] ACTSC 133
R v Smith [2019] ACTSC 65
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252

R v Wolter (No 3) [2015] ACTSC 321

Parties:

The Queen (Crown)

Akis Livas (Offender)

Representation:

Counsel

S Saikal-Skea (Crown)

S Whybrow (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aulich Criminal Law (Offender)

File Number:

SCC 77 of 2019

MOSSOP J:

Introduction

  1. The offender, Akis Livas, pleaded guilty in the Supreme Court to one count of culpable driving causing death contrary to s 29(2) of the Crimes Act 1900 (ACT), the maximum penalty being 14 years’ imprisonment (CC2018/12078).

  1. While driving a truck, the offender drove into the rear of a vehicle in which a family was innocently and happily travelling to the shops.  A four-year-old child suffered catastrophic head injuries and died as a result.  His family has been devastated by his loss.

  1. To describe this case as a tragedy does not fully convey the raw suffering of the victim’s family which must be acknowledged in these proceedings.  I adopt the language previously used by Justice Refshauge and the Chief Justice in cases like this:

I appreciate that no sentence I can impose will resolve the tragedy that the [family] of [the deceased victim is] experiencing and the trauma suffered by [the victim’s family].  The sentences I impose should not, in any way, be seen as reflecting on the value of the [life] of [the deceased victim].  It would be wrong to attempt any such equation for our law simply does not allow that to be made even were it possible.  I have to judge [the offender] not merely according to the awfulness of the tragic results of his actions but in accordance with the…

Continue reading R v Livas (No 2)

Sign in free to access the full text

Details
AGLC
R v Livas (No 2) [2020] ACTSC 116
Case
[2020] ACTSC 116
Decision Date

CaseChat Overview and Summary

In the case of R v Livas (No 2), the appellant, a professional truck driver, was convicted of causing death by dangerous driving. The incident resulted in the death of a child. The appeal was centred on the appropriateness of the sentence imposed by the lower court. The appellant, who had undiagnosed sleep apnoea at the time of the incident, had been on notice of the possible condition and failed to attend referrals. Additionally, the appellant did not inform his employer about the potential diagnosis, and he had a prior criminal history. The appellant argued that the sentence was excessive and that the lower court had failed to take into account certain mitigating factors.

The legal issues before the court included whether the lower court had appropriately exercised its discretion in imposing a full-time imprisonment sentence, and whether the sentence was manifestly excessive given the mitigating factors. The court was required to consider the principles of sentencing for culpable driving causing death and whether the sentence was proportionate to the offence. The court also needed to determine whether the appellant’s failure to attend medical referrals and inform his employer about the possible diagnosis of sleep apnoea should be considered as aggravating or mitigating factors.

The court, after reviewing the sentencing principles and the particular circumstances of the case, found that the lower court had exercised its discretion appropriately. The court held that the sentence was not manifestly excessive, considering the severity of the offence and the appellant's prior criminal history. The court also determined that the appellant's failure to attend medical referrals and inform his employer about the possible diagnosis of sleep apnoea did not significantly mitigate the sentence. The appeal was dismissed, and the original sentence of full-time imprisonment was upheld.

Orders

Orders of the court

See [63]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.