R v Sismanoglou
[2015] VCC 1508
•26 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00392
| THE QUEEN |
| v |
| STEPHEN SISMANOGLOU |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11, 31 August and 13 October 2015 | |
DATE OF SENTENCE: | 26 October 2015 | |
CASE MAY BE CITED AS: | R v Sismanoglou | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1508 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence –
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Gilligan (Plea and Sentence) Mr B Kissane Q.C. (Further Plea) | Office of Public Prosecutions |
| For the Accused | Mr G Nash Q.C. (Plea) Mr R Richter Q.C. (Further Plea) Mr G Konstas (Sentence) | Robert James Lawyers |
HIS HONOUR:
Introduction
1
I wish to commence by noting for the record that the members of both the Higgon and Marchant families and their friends have conducted themselves admirably during these proceedings, as have the members of
Mr Sismanoglou’s family and their friends. I appreciate that this has been a difficult experience for all of you, no doubt to varying degrees and for different reasons, but difficult nonetheless. Sentencing in a case such as this is very difficult as there are a number of competing considerations which the court must have regard to, balance and weigh. Sentencing decisions in such cases are unlikely to satisfy all or even any of the people who have a direct involvement in those cases. I understand that, but I do ask that during this sentencing hearing, each of you continue to respect the court and the legal process and conduct yourselves in the manner in which you have previously. Thankyou.
2 Stephen Sismanoglou, you have pleaded guilty to an indictment containing one charge of dangerous driving causing death (charge 1), for which the maximum penalty is 10 years’ imprisonment and two charges of dangerous driving causing serious injury (charges 2 and 3), for which the maximum penalty is 5 years’ imprisonment.
Factual Dispute
3
During the first two days of the plea hearing on 10 and 11 August this year,
Mr Gilligan appeared on behalf of the Director and Mr Nash QC appeared on behalf of the accused man, Stephen Sismanoglou. After some discussions in relation to whether the proposed prosecution opening was an agreed statement of facts for sentencing purposes, it was clear that the only significant factual matter that remained in dispute between the parties related to whether the accused man was aware of the very poor condition of the rear driver’s side tyre of the vehicle that he was driving on the day in question.
4 As is clear from the relevant police photographs taken at the scene of the collision and afterwards,[1] and from the statement and evidence given by the expert mechanical witness, Senior Constable Brickley, the tyre was devoid of tread and worn down to such an extent that the steel plies were starting to come through the casing. It was clearly unroadworthy and in very poor condition. The expert evidence is to the effect that such wearing to the tyre is consistent with having been subjected to the friction and forces created by a driver of that vehicle doing “burnouts”.
[1] See photographs 23 to 25 of exhibit B, photographs 1 and 2 of exhibit C, and all 11 photographs of exhibit D.
5 In order to prove the matter in dispute, the prosecution called viva voce evidence from Senior Constable Brickley of the Mechanical Investigation Unit, and relied on other evidence.
6 For their part, the defence cross-examined Mr Brickley, called evidence from the accused man’s father, Daniel Sismanoglou, and tendered other evidence.
7 Later, on 22 September, significant evidence came to light in the form of what I consider to be an admission made by the accused man to the community corrections officers who interviewed him in relation to his suitability for a community correction order.[2]
[2] See pages 1-2 of the Pre-Sentence Report of Emelye Buttegieg and Kristine O’Connor dated 22.09.2015 under the heading “Circumstances Surrounding the Current Offences”, in particular the second paragraph on page 2.
8 Ultimately, each of the parties made submissions to the court in respect of the matter in dispute and the relevant evidence.
9 After considering that evidence and those submissions, I have no hesitation in drawing the inference that the prosecution are asking me to draw. I have no doubt that the accused man was well aware of the condition of the rear right hand tyre on his father’s vehicle prior to him driving on this occasion. I have reached that conclusion based on the following.
10 The Commodore in question belonged to the accused man’s father, Daniel Sismanoglou. He was the main user of that vehicle. Once the accused got his driver’s licence shortly after turning 18, he would borrow the vehicle from his father on occasions. Mr Sismanoglou Senior denied being responsible for doing any burnouts in the Commodore so as to cause the tyre in question to become so worn. It is clear, therefore, that whenever and however that tyre was damaged, it was while the vehicle was in the possession of the accused man, Stephen Sismanoglou. In coming to that conclusion, I am not saying that he himself personally performed the burnout or burnouts that caused the tyre to become so worn. But, he must have been present and aware of it occurring on the occasion or occasions that it did. The evidence reveals that he had a strong interest in vehicles doing burnouts, including Holden Commodores. Police located a video file on his mobile phone which showed a very similar type of vehicle to his father’s doing a burnout on 19 December 2013 (exhibit F). The police also obtained copies of relevant images and captions relating to burnouts from his Facebook account (exhibit H) which related to a period before the date of this incident. Furthermore, police also located a digital photograph on his mobile phone which showed a tyre that had significant wear consistent with having been caused by a vehicle performing burnouts. That would suggest that the accused man not only had an interest in vehicle burnouts but also in the damage that such burnouts could cause to the tyres of the vehicle performing them.
11 I have been able to arrive at the conclusions that I have without the need to reconcile, if such reconciliation is necessary, the evidence given by Senior Constable Brickley and that given by Daniel Sismanoglou on the issue of whether the driver of the Commodore could or would hear the noise made by the damaged tyre when the vehicle was being driven. I do not need to consider whether it would be safe to infer that the accused man would be aware of the condition of the tyre based on the noise that it may have made while in motion because there is sufficiently strong evidence from other sources to enable me to infer the requisite knowledge on his part.
12 I have no reason to conclude that the worn tyre caused any particular problems if the vehicle was being driven normally in dry conditions. That was the implication from the evidence given by Daniel Sismanoglou and it may receive some support from some of the evidence given by Senior Constable Brickley.
13 Significantly, the accused man made an admission when being interviewed by the community correction officers regarding his suitability for a community correction order. In their report, dated 22 September 2015, the co-authors Emelye Buttigieg and Kristine O’Connor described that admission in these terms:
“Mr Sismanoglou did admit to knowingly driving with a tyre that was unsafe and that this was his fault…”
14 As I indicated during the plea hearing, there is a distinct difference between driving with a bald tyre in dry conditions as compared to wet conditions. The reasons for that were explained in the evidence given by Senior Constable Brickley and are well known to those who practice regularly in the criminal jurisdiction of this Court, be they barristers or judges.
15 That is an important point to remember because, in my view, it would not have been until he experienced how badly the vehicle reacted under heavy acceleration at the first set of traffic lights that the accused would have had any real appreciation of the risks involved in driving that particular vehicle with that particular tyre in wet conditions. I intend to approach the matter in that way for sentencing purposes.
16
I will now turn to describe the circumstances of the offending for which
Mr Sismanoglou now falls to be sentenced.
Circumstances of the Offending
17 Those circumstances were opened by the learned prosecutor, Mr Gilligan, and are contained in the typed prosecution opening that was tendered as exhibit A on the plea. Having considered what each of the parties have submitted about what the various witnesses have previously said, and after considering the totality of the evidence, I am satisfied that the circumstances were as follows.
18 On the relevant afternoon, Wednesday 1 January 2014, the accused man was driving his now girlfriend, Marion Bregiannis, home to East Bentleigh in his father’s Holden Commodore. At that time, Mr Sismanoglou had held a probationary licence for about 6 months, having turned 18 on the 15th of June of the previous year. Ms Bregiannis is the victim in the offence alleged in charge 3, and was 17 years of age at the relevant time.
19 The other two young female victims were close friends and travelling together with another friend in a Toyota Corolla. They had earlier attended a music festival In Lorne and were in the process of returning home to Brighton when this tragic event occurred. In fact, they only had a very short distance to go before completing their journey. Annika Higgon was the youngest of their party. She was 19 years of age and was driving the Corolla at the relevant time. Her very close friend, Ella Marchant, was 21 years of age and seated next to Ms Higgon in the front passenger seat. Their friend, Radost Krasteva, was 20 and seated behind Ms Higgon in the rear of the vehicle.
20 Shortly before 4.30 pm on that day, a witness saw the Holden Commodore being driven by the accused stationary at a red traffic light on the corner of St Kilda Road and Wellington Street, in St Kilda. The Commodore was the front most vehicle in the lane in which it was located. At that time, Mr Sismanoglou was intending to continue travelling south towards East Bentleigh. When the light turned green, he accelerated away from the lights in a manner that caused the vehicle to “fishtail” as he took off. The witness saw the back of the Commodore slide from side to side for what he estimated was about 30 to 40 metres before the driver was able to regain control of the vehicle.
21 The distance between that intersection and the part of St Kilda Road at which the collision occurred is less than a kilometre. The relevant part of St Kilda Road has four lanes in each direction, separated by a wide median strip that contained two sets of tram tracks in the centre and large trees adjacent to the roadway. The applicable speed limit was 60 km/h. It had been raining and the roads were wet. There were no problems in relation to either the visibility or the road surface. As could be expected for that time on the New Year Day public holiday, the level of traffic was medium.
22 Both vehicles were travelling in a southerly direction in the immediate lead up to the collision. The Corolla was in the third of the four lanes applicable to south bound traffic. As he was approaching a red light at the intersection with Alma Road, Mr Sismanoglou changed lanes and moved into the same lane as the Corolla. At that time, the Commodore was behind the Corolla being driven by Ms Higgon. There were also other vehicles in the immediate vicinity of those two vehicles. When the lights turned green, the traffic commenced to travel south. As is clear from the relevant photographs tendered as part of exhibit B, the road has a downhill gradient in that area.
23 What next occurred was witnessed by a number of other road users in the vicinity. Whilst the various accounts differ to some degree, I am satisfied that the incident occurred in the following way.
24 It is not in dispute that Mr Sismanoglou was driving at a higher speed than others, approximately 10 km/h faster. His speed was estimated to be at or just over the speed limit of 60 km/h. He appeared to be impatient and anxious to change lanes and in an effort to do so, attempted what can only be described as a risky and dangerous manoeuvre. It was, as one witness later described, a completely unnecessary and unsafe action on his part. He accelerated quite hard and attempted to move into the right most lane. That action on his part caused the Commodore to “fishtail” again with a resultant loss of control of the vehicle. As a consequence, the front passenger side of the Commodore struck the rear driver’s side of the Corolla. Annika Higgon had no absolutely forewarning and had no opportunity to take any evasive action before the initial impact from the Commodore.
25 Following the impact, each of the vehicles went into a clockwise spin or rotation. Neither of the drivers were able to regain control of their vehicle and, as a result, each of the vehicles ended up colliding with a large tree and sustaining significant damage. On seeing the relevant photographs of that damage, one is left to wonder how others were not more seriously injured than they were and how Ms Marchant survived at all.
26 As a result of Mr Sismanoglou’s dangerous driving, Annika Higgon suffered severe life threatening injuries to her head and body, including severe brain trauma. Thereafter, she remained unable to communicate verbally and totally dependent on others for her care and assistance with all activities of daily living. She remained hospitalised and tragically succumbed many months later to complications arising from the very serious head injury that she had sustained in the collision. At the time of her death on 15 October 2014, Annika was 20 years of age.
27 Ella Marchant was very seriously injured. She suffered multiple fractures to her hip and pelvis, a fracture to her coccyx, nerve damage to her right leg, lacerations to her head and a sprained left ankle. As a result of her injuries, Ms Marchant was required to receive significant inpatient care both at the Alfred Hospital and at a rehabilitation hospital. Complications arose when an infection set in after she had pins inserted in her hips to stabilise them. As a result, she required additional treatment and care which prolonged the time that she was in inpatient care. She was finally discharged from the rehabilitation hospital on 19 February 2014. Her rehabilitation in relation to her injuries continues to this day.
28 Fortunately for Ms Krasteva, she sustained only minor bruising and scratches.
29 Ms Bregiannis was trapped in the Commodore and had to be cut out by the emergency personnel who attended the scene. She sustained a broken leg as a result of the collision. She had to wear a plaster cast for six weeks and then a brace for a further six weeks.
30 As for you, Mr Sismanoglou, you were far luckier than the three victims, escaping as you did with only a laceration and bruising to your forehead.
31 You had not consumed alcohol or taken any drugs prior to driving and they played no part in this collision.
Arrest and Interview
32 You were taken from the scene to the police station in order to be interviewed about this incident. Before conducting any interview, however, the police properly arranged for you to be examined by a doctor for the purposes of assessing your suitability for interview. The doctor deemed you unfit for interview at that time because of the injury that you had sustained to your forehead. As a result, you were released pending further interview at a later time.
33
You voluntarily participated in an interview just over a month later, on
5 February. On that occasion, you admitted to being the driver of the Commodore at the relevant time, but otherwise exercised your legal right to give no comment answers to the questions and allegations that were put to you by the interviewing police officers.
34 As a result of Annika Higgon’s death, you were re-interviewed on 14 November 2014. You made no admissions at that time, as was your legal right.
Mechanical Inspection of the Vehicles and the Scene
35 Each of the vehicles involved in this collision were later forensically examined by a suitably qualified mechanical expert.
36 The inspection of the Corolla revealed that it had no mechanical faults that would have caused or contributed to the collision.
37 As a result of his inspection of the Commodore, Senior Constable Brickley concluded that it was in an unsafe mechanical condition on account of the fact that the rear driver’s side tyre was devoid of any tread and was worn down to the extent that the steel plies were starting to come through the casing.
38 The evidence he saw in relation to the tyre and wheel arch was consistent with the vehicle having been subjected to wheel spin through doing “burnouts”.
39
As I have already noted, the dangerous driving engaged in by
Mr Sismanoglou took place in circumstances where it had been raining and the roads were wet. In the opinion of Senior Constable Brickley, the lack of tread would have prevented the tyre from clearing the water from its rolling path. In his view, that would have compromised tyre traction and likely had a significant contribution to the collision.
40 The Collision Reconstructionist, Detective Acting Sergeant Jenelle Mehegan, arrived at the following opinion:
“As a result of the combination of the wet road, low tread depth tyre on the rear of the vehicle, acceleration of the vehicle and steering input relating to [that vehicle], the rear of the vehicle has slid out resulting in a loss of control of the vehicle and the subsequent impact with the Toyota Corolla”.
41 Although she was unable to estimate the speed of the Commodore with any precision, she was prepared to say with some confidence, based on the damage to the two vehicles, that it was travelling approximately 10 km/h faster than the Corolla at the relevant time.
Victim Impact Material
42 A significant amount of victim impact material was presented to the court in respect of charge 1, that involving the death of Annika Higgon. Those victim impact statements were all prepared in July of this year. Annika’s parents, Rowan and Dianne Higgon, made a joint victim impact statement (exhibit H) as well as individual victim impact statements (exhibits J and L, respectively). Each of them read their statements to this court and relied on a video presentation of their daughter (exhibit K). Other victim impact statements were tendered but not read to the court. There was one from Annika’s brother Jesse (exhibit M), a joint one from her maternal grandparent’s Oscar and Vilma Loescher (exhibit N) and one from her friend Hannah Macaulay (exhibit O). It should also be noted that parts of Ella Marchant’s victim impact statement (exhibit P) addresses the impact that the death of her friend Annika has had on her.
43 It should be recognised by this Court that when presenting their material during the plea hearing, Mr and Mrs Higgon and Ella Marchant displayed great courage and dignity. What they said was articulate, measured and informative.
44 I have considered all of the material relating to Annika Higgon. It is clear that at the time of this tragic incident, she was an intelligent, caring and engaging young woman who had a bright future. This offence has robbed her of the opportunity to live her life and attempt to fulfil her undoubted potential.
45 She was much loved by all of her family and friends. Her parents were justifiably proud of her and what she had achieved to that point in her life. But, in the ten month period between the collision and her untimely death, Annika’s family and closest friends had to witness her difficult and continuing struggle for life. Her ultimate death on 15 October 2014 left them feeling devastated. Indeed, they are no doubt still coming to terms with such a senseless waste of a promising young life. Her parents and brother are left to wonder about what else she could have achieved in her personal and working life and to mourn the many lost opportunities that her premature death has caused. Their lives will never be the same. Unsurprisingly, it has taken a great emotional toll on all of them. They have required counselling. Jesse has become socially isolated and continues to experience feelings of anger about the loss of his sister.
46 The adverse emotional impact on Ms Macaulay has been significant and she too has had to consult a psychologist.
47 After this collision, Ms Marchant was left in an invidious position through no fault of hers. She had to try and recover from the physical and emotional effects of her own significant injuries while simultaneously bearing witness to the gradual decline and then death of her close friend, Annika. The fact that Ms Marchant was a passenger in the Corolla and therefore witnessed the collision that caused her friend’s death has meant that she was unable to escape the issue as people constantly asked her about the collision. And, she has experienced feelings of guilt. First in relation to being injured less seriously than Annika. And then, on Annika’s death, about the fact that she survived and Annika didn’t. It is to be hoped that with the passage of more time those feelings will dissipate as Ms Marchant has absolutely nothing to feel guilty about. At the time of this incident, she and her two friends were acting responsibly and were just unfortunate to be where they were at the time that Mr Sismanoglou chose to drive in the dangerous manner that he did. It is he and he alone that must shoulder the blame and guilt for what occurred and its tragic consequences.
48 A significant amount of victim impact material was also presented to the court in respect of charge 2, that involving the causing of serious injury to Ella Marchant. Some of the authors of those victim impact statements read them to the court at the plea. Again, as was the case in respect of the Higgon family, it was done in a measured, thoughtful and dignified manner.
49 Ella Marchant’s own victim impact statement was sworn on 27 July 2015 and included a medical report from Dr Michael Nolan, a psychological report from Mary Ingamellis and a joint report from Anna Salzgebar, a clinical psychologist, and Dr Bruce Shirazi, a consultant who works in the field of rehabilitation medicine. Ms Marchant’s statement was also supplemented by a number of photographs when presented to the court.
50 Ms Marchant has had to undergo a painful and lengthy period of rehabilitation in relation to the injuries that she sustained. Even as late as July of this year, she was still experiencing pain and significant adverse physical effects from her injuries. Her social life has been severely impacted. On any view, her quality of life has been significantly diminished. She has experienced flashbacks and panic attacks and has had trouble sleeping. She has developed a post-traumatic stress disorder. Her university studies and career ambitions have been delayed and in respect of the latter, jeopardised. In my view, it is no exaggeration for her to have stated, as she did, that “the impact of this crime on my quality of life has been severe…with continuing physical, emotional and psychological injuries”. The relevant medical and psychological reports confirm that to be the case. Clearly, the adverse effects of this crime on her are ongoing.
51 There are other victim impact statements from her father, Brett, her mother, Debra, her brother, Ned and her sister, Tess. Each of them eloquently describe the adverse effects that this offending has had on them. They have clearly struggled to come to terms with the significant ways in which the life of their daughter or sister has been impacted. Their efforts in offering her and each other what support they can, has taken an emotional toll on them.
52 Ms Bregiannis, the victim of the offence alleged in charge 3, has not made a victim impact statement. As I have already noted, she was required to wear a cast and then a splint over a total period of approximately 12 weeks.
53
It would appear that she and Mr Sismanoglou have been in a committed relationship since early 2014, a fact confirmed in her character reference of
4 August 2015.[3] I think it reasonable to assume that she has made a good recovery from her injuries. As is clear from their respective references,
Ms Bregiannis and her father, Elias, are fully supportive of Mr Sismanoglou.
Gravity of the Offences Generally
[3] This reference was tendered as part of exhibit 7 on the Plea.
54 Each of these types of offences, in particular that involving the causing of death, are inherently serious. Parliament have indicated that by seeing fit to fix the respective maximum penalties that they have.
55
It must be borne in mind that within three years of these two types of dangerous driving offences being included in the Crimes Act 1958, Parliament considered it necessary to effect a doubling of the maximum penalty for the more serious offence of dangerous driving causing death. That increase was from 5 to 10 years and was applicable to all such offences committed on or after 19 March 2008. In the Second Reading Speech delivered on
6 December 2007, the Attorney General referred to that increase in these terms:
“In order to clarify the hierarchy of these offences, the bill will split the offence of dangerous driving causing death or serious injury into two offences. The penalty for the offence of dangerous driving causing death will be increased from 5 to 10 years.
This change places greater emphasis on the harm that is caused by the offence…and is consistent with the increase to the penalty for negligently causing serious injury.”[4]
Appellate Decisions and General Principles
[4] Victoria, ’Crimes Amendment (Child Homicide) Bill’, Parliamentary Debates, Legislative Assembly, 6 December 2007, 4414 (Rob Hulls, Attorney-General).
56 Since Parliament introduced these two forms of dangerous driving offence in 2004, there have been a number of appellate decisions which have sought to provide general guidance in relation to the sentencing of offenders for such offences.
57 In the early case of Director of Public Prosecutions v Oates[5], Neave JA (with whom Warren CJ agreed) said:
“…general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. Members of the public must recognise that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. As the New South Wales Court of Criminal Appeal said in Whyte, a custodial sentence will usually be appropriate for an offence of this kind, except in cases where the offender’s level of moral culpability is low”.[6]
[5] (2007) 47 MVR 483.
[6] Ibid at 486 (references omitted).
58 Those observations were later referred to with approval in the 2009 case of DPP v Neethling[7]. At [29], the Court endorsed the NSW approach in Jurasic[8] that a non-custodial sentence for the offence of dangerous driving causing death should be seen as exceptional. At [30], the Court confirmed the principles as enunciated by Neave JA as follows:
[7] (2009) 22 VR 466.
[8] (1998) 45 NSWLR 209
1. General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
2. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
3. The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
4. A custodial sentence will usually be appropriate for this offence, except in cases where the offender’s level of moral culpability is low.
59 At [36], the Court implicitly accepted that any assessment of the objective dangerousness of the driving must take account of all of the circumstances, including the driving conditions.
60 Later in that same year, the Court of Appeal delivered its judgment in the case of Towle v R[9]. The offender in that case was convicted by a jury in relation to multiple charges of both types of dangerous driving offences. As was there noted by Maxwell P, by reference to the earlier decision of De Montero, the dangerousness of the driving is informed by the degree of risk of harm being caused and the extent of potential harm.[10] Thus, the extent of risk includes both the likelihood that something will go wrong, and the extent of the harm that will result if it does.[11]
[9] (2009) 54 MVR 543.
[10] Ibid at [66].
[11] See Gorladencherau v R (2011) 34 VR 120, [25] (Maxwell P, with whom Ashley JA and Ross AJA agreed)
61 At [75], the learned President observed that it was well-established that general deterrence is of great importance for driving offences which result in death or serious injury. In illustrating that point, he made specific reference to the well-known and often cited observation in DPP v Gany[12] in relation to offences of negligent driving. That observation in Gany is worth repeating now:
“…Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation. No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public. This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing (serious) injury that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence. In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process. Denunciation and general deterrence must be at the forefront of the sentencing synthesis.”
[12] (2006) 163 A Crim R 322, [35]
62 At [87], Maxwell P first noted the variation seen in sentencing for these driving offences and then went on to explain why it was unsurprising:
“So much depends, necessarily, upon the circumstances in which the death or serious injury occurs, since they will affect the sentencing court’s conclusions as to the degree of lack of care; the dangerousness of the driving; the nature and extent of the risk created by the driver; and the nature and extent of the harm caused.”
63 As was also noted by Maxwell P in the decision of Gorladencherau v R[13], a case that involved an offence of negligently causing serious injury, the objective gravity of the offending was to be assessed by reference to both the degree of negligence and the seriousness of the injury caused. In my view, that statement of principle can be adopted and adapted to cases involving offences of dangerous driving causing serious injury. In such cases, the objective gravity of the offending is to be assessed by reference to both the degree of dangerousness of the driving and the seriousness of the injury caused.
Gravity of this Offending
[13] (2011) 34 VR 149, [22]-[24].
64 I will now turn to an assessment of the objective gravity of the offending in this case.
65 This driving occurred on the afternoon of New Year’s Day. No doubt, many people were just going about their ordinary business enjoying the public holiday. St Kilda Road is a major multi-lane roadway. The amount of traffic at the time was medium. There were other road users in the immediate vicinity of the Commodore that Mr Sismanoglou was driving. A number of them were sufficiently proximate to be able to describe the collision. The Corolla being driven by Annika Higgon had three occupants and the Commodore being driven by Mr Sismanoglou had a front seat passenger. It had been raining and the road was wet. Based on his experience at the earlier set of traffic lights, Mr Sismanoglou knew that if he accelerated sufficiently heavily from a stationary position in the wet conditions, then the Commodore that he was driving and which he knew to have a defective tyre, was very likely to “fishtail” and thereby cause him to lose control of that vehicle.
66 Within what must have been only a few minutes or so of that warning at the previous lights, and once he had already reached a speed that was close to or slightly above the 60 km/h speed limit, Mr Sismanoglou chose to perform a very dangerous overtaking manoeuvre under significant acceleration. That was a deliberate decision on his part. It was an aggressive and totally unnecessary action. The level of dangerousness involved in that driving was significant. The wet road conditions alone made any act of acceleration risky. When combined with a rear tyre that lacked any real tread, that risk was increased very substantially. Moreover, the presence of a number of other vehicles in the immediate vicinity made the overtaking manoeuvre more difficult and more risky. To accelerate as he did at the speed that he did carried a very high risk of losing control of his vehicle and of colliding with one or more of the other vehicles in the vicinity. The extent of potential harm was, in those circumstances, relatively high.
67 Accordingly, I consider that the degree of dangerousness of Mr Sismanoglou’s driving to be quite high.
68 In respect of that driving, he bears a significant level of moral culpability. His decision to drive as dangerously as he did in knowing disregard of the warning that he had been given moments earlier about accelerating in those road conditions increases the level of his moral culpability and aggravates the seriousness of his offending.
69 As was confirmed by Maxwell ACJ in Board v The Queen[14] by reference to the earlier decision in Towle:
“A person who drives dangerously, knowing of a risk associated with his driving, will (all other things being equal) be adjudged more blameworthy than one who drives in the same dangerous manner without that knowledge.”
[14] [2013] VSCA 190, at page 13 [34] point 2.
70 In the course of the sentencing submissions put forward on behalf of Mr Sismanoglou, it seemed to be suggested that his youth and driving inexperience should be taken into account so as to ameliorate the significance of his driving, both at the earlier set of lights and then in relation to the overtaking and collision. To my mind, that argument was wholly unpersuasive. In that regard, the observations of the Court in Neethling appear apposite. The offender in that case was a young and inexperienced male driver who performed a very dangerous overtaking manoeuvre with tragic results. The relevant observations of the appellate judges in that case were expressed in these terms:
“The newly licensed driver well knows that he/she is on probation, on trial. Quite obviously, driving unsupervised is fundamentally different from the supervised driving which the learner driver undertakes. For the first time, the new driver must confront unexpected situations, and make quick decisions without assistance. That is an adult responsibility and must be discharged accordingly. The new driver must realise that his/her inexperience creates risks for himself/herself, for passengers, and for other road users.
These are self-evident propositions. We have little doubt that they represent the universal view within our community. And they illustrate, without further explanation, why Mr Neethling’s culpability must be viewed as high. He took a completely unnecessary risk, and in so doing put others unnecessarily at risk. In the language of Spigelman CJ, he ‘abandoned his responsibility’-to his passengers and to other road users-with catastrophic results.” [15]
[15] (2009) 22 VR 466, [43]-[44] (Maxwell P, Vincent JA and Hargrave AJA).
71 In respect to charges 2 and 3, I must also have regard to the nature and degree of the seriousness of the serious injury caused to each victim.
72 Whilst I do not suggest in any way that sustaining a broken leg, as Ms Bregiannis did, is not a serious injury, the injuries suffered by Ms Marchant were far more serious. Necessarily then, the offence involving Ms Marchant (charge 2) must be viewed more seriously than that involving Ms Bregiannis.
73 In respect of charges 1 and 2, I must have regard to the impact that each offence has had on the principal victim as well as on their family and friends to the extent revealed in the victim impact statements and associated material tendered in this court. I have already noted such matters and I won’t repeat them now.
Personal Circumstances
74 I will now turn to Mr Sismanoglou’s personal circumstances.
75 He is currently 20 years of age, having been born on 15 June 1995.
76 His childhood was happy and he has always been loved and supported by his family. He remains close to his parents and sister.
77 He completed his secondary education at St Kevin’s College. He was well regarded there and involved himself in all aspects of the College’s life. As the reference and viva voce evidence from Sarah O’Sullivan, one of his Year 12 teachers demonstrate, he was well-regarded and a good student who demonstrated a commitment to his studies. He obtained a good ATAR score, sufficient to be accepted into the Bachelor of Commerce Degree course at Deakin University.
78 He has very recently completed the last of his 2nd year exams. His studies have, in his view, been adversely affected by the stress he has undergone as a result of being charged and prosecuted for this matter.
79 Mr Sismanoglou has shown a commitment to voluntarily giving his time to a number of worthwhile community causes, both at school and outside of school.
80 He has undertaken a number of courses aimed at assisting him to obtain work and better understand the hospitality industry. He has aspirations of opening his own café or restaurant in the future.
81 He is currently employed in a part-time position at a local café, working approximately 30 hours per week. Mr Sismanoglou, the very positive reference from Marcos Orfanidis, the proprietor of the café at Deakin University, describes you as one of his most valued employees. You have secured the position of head barista and have impressed him as someone who is level-headed, respectful and kind. He, like some of the other referees, refers to the fact that this incident appears to have affected you greatly.
82 You and Ms Bregiannis had been friends for about four years until you commenced a relationship in early 2014. As her reference and that of her father show, you have supported each other through this ordeal and remain committed to each other.
83 There is a consistency throughout the various written testimonials. Some of those referees also gave evidence on the plea. Your commission of these offences has come as a shock to those people and to your family and close friends. You have always been regarded as a mature, responsible, intelligent, hardworking, respectful and thoughtful young man, and as someone who clearly knows right from wrong. Given those very many good qualities, it is understandable that they would be surprised to learn of your involvement in this tragic and regrettable incident.
84 Mr Sismanoglou, I accept that this matter has weighed heavily on you, and to your knowledge, on the rest of your family.
85 During the plea hearing, a report from the psychologist, Peter Antonenko, dated 28 May 2015 was tendered.[16] He also gave brief evidence at the plea.
[16] Exhibit 1.
86
As he explained, you were initially referred to him by your doctor via a Mental Health Care plan so as to assist you to deal with the subject collision of
1 January 2014.
87 Mr Antonenko conducted his initial assessment of you on 26 February 2014. You presented as contrite and accepting of your responsibility for what occurred. You demonstrated concern for the effects that this incident has had on the families of the victims and on your own family. He also noted that you had heightened anxiety levels at times, as well as disturbed sleep. Your mood vacillates from self-reproach to confusion to irritation to avoidance.
88 As he notes in his report, you have attended for counselling on a regular and consistent basis, and have followed through with a number of suggested interventions. In that regard, I also note that you told the authors of the youth justice suitability report that you had found the sessions with the psychologist very helpful and learnt varying strategies to cope with anxiety, insomnia, and recurring thoughts about the incident. You expressed a willingness to continue with this therapy if your circumstances after sentencing permit it.
89 Mr Antonenko is of the opinion that you will require on-going support and intervention for some time to ensure that you are coping with the effects of the incident and subsequent events and to ensure effectiveness of treatment. He recommends that you receive counselling on a regular and consistent basis for at least the next 12 months and then a review.
90 In his sworn evidence on 10 August 2015, Mr Antonenko confirmed that he had been seeing you up until the previous week. In cross-examination, he agreed that Mr Sismanoglou had no history of any pre-existing disorders. He also stated that the anxiousness displayed by Mr Sismanoglou could be at least partly explained by the prosecutorial process and its potential outcome.
91 I note for the sake of completeness, that your counsel, Mr Nash QC specifically eschewed any reliance on the principles in Verdin’s case.[17]
Other Matters in Mitigation
[17] For example, see plea transcript for 10.8.2015 at page 46.
92 There are a number of other matters in mitigation to which I must have regard in this case.
93 The prosecution originally charged Mr Sismanoglou with the more serious offences of culpable driving causing death and negligently causing serious injury.
94 In addition, based on an expert’s opinion, the issue of causation in respect of the first charge needed to be investigated given the paucity of material at that stage.
95 When the latter matter was able to be clarified, the matter was discussed between the parties and ultimately settled in the terms contained in this plea indictment.
96 When viewed against that background, I consider the pleas in this matter to have been entered at an early stage notwithstanding that the matter did not settle until after the committal hearing was held.
97 Accordingly, Mr Sismanoglou is entitled to a significant discount in his sentence. By taking the course that he has, he has saved the community the cost and time involved in a trial and spared the witnesses from having to give evidence at such a trial.
98
In the circumstances, I am prepared to find that Mr Sismanoglou’s plea is indicative of remorse. This issue is not without its nuances, however, as the other relevant material indicates. A good deal of that material indicates that he has shown remorse. For example, the statements to that effect by very many referees, including Ms Bregiannis and her father, by the psychologist, Peter Antonenko, and by the author of the pre-sentence report in relation to suitability for a youth justice centre order. But, on the other hand, the authors of the other pre-sentence report indicate that when interviewed on
22 September, Mr Sismanoglou did, to some extent, minimise his role in the offending. In their view, he presented with a reluctance to accept ownership of his role in the offending but accepted accountability for the outcome.
99 Mr Sismanoglou’s youth is an important consideration. He was 18½ when he offended and does not turn 21 for another 8 months.
100 This is the first time that he has ever been in trouble with the law. He has no previous findings of guilt or convictions and no other charges pending. His previous good character is well documented in the impressive character references that were tendered during the plea.
101 Those references also indicate that he comes from a good law abiding family who have been unwavering in their support of him. The support that he also enjoys from family, friends and others in the community is clear from those references and from the many people who demonstrated their support by attending the plea.
Relevant Sentencing Principles
102 I must have regard to a number of relevant sentencing principles in this case.
103 As I have already noted by reference to earlier appellate cases, general deterrence is a very important consideration in a case such as this. This Court must, by the sentence that it imposes, seek to discourage other road users who are tempted to drive dangerously from doing so.
104 The point was made in the case of Board in these terms:
“General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. The importance of care in driving, given the risks associated with dangerous or careless driving, underpins the need for sentences to be imposed which will deter others from following a similar course of driving dangerously.”[18]
[18] [2013] VSCA 190, page 13 [34] point 4.
105 The importance that must be attached to general deterrence means that relatively less weight can be attached to Mr Sismanoglou’s youth.
106 In the case of Neethling, the offender was, like Mr Sismanoglou, only 18 years of age when the offending occurred. The Director contended notwithstanding Mr Neethling’s age, that general deterrence was of primary importance. In support of that submission, the Director stated “[T]here is widespread community alarm at very serious motor vehicle accidents involving young drivers. It is appropriate that deterrence be used to encourage young drivers not to drive dangerously.”
107 After accepting that submission, the Court went on to say this:
“As Spigelman CJ said in Whyte, the ‘frequently occurring case’ of dangerous driving causing death is one involving a young offender, of good character and with no or limited prior convictions, and showing genuine remorse. That description fits Mr Neethling perfectly.
Unsurprisingly, experience in Victoria mirrors that in NSW. It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight. In the present case, the victims were themselves young people. The importance of general deterrence is to try and prevent the very kind of damage which occurred here.”[19]
[19] (2009) 22 VR 466, [54]-[55].
108
Denunciation is another important consideration. This Court must, on behalf of the community denounce and condemn the criminal conduct in which
Mr Sismanoglou engaged on this occasion. It must make clear that such conduct is completely unacceptable. On this aspect, it is worth referring briefly to what was said by the Court in Neethling and by Maxwell P in Towle.
109 Paragraph [56] of the Court’s judgment in Neethling was in these terms:
“The rationale of the criminal law is to minimise the damage occasioned by anti-social behaviour, by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of the victims and by rehabilitating offenders. The sentencing function enables the courts to state with crystal clarity that conduct of this particular kind will not be tolerated.”
110 In paragraph [76] of his judgment in Towle, Maxwell P stated:
“The imposition of sentence for serious criminal conduct is (amongst other things) an expression of the community’s condemnation of what occurred. Denunciation contributes to, but is distinct from, general deterrence. As the Court of Criminal Appeal said 15 years ago in R v Penn, one of the reasons for community revulsion at this kind of offending is ‘a general recognition of the needless waste of human life together with sorrow and distress that is usually [its] concomitant’.”
111 In light of the nature and seriousness of this offending, specific deterrence is still relevant to my sentencing task. However, given Mr Sismanoglou’s lack of previous or subsequent offending and his very good prospects of rehabilitation, it assumes a much lesser role than some other sentencing considerations.
112 Among other things, s 5 (1) of the Sentencing Act 1991 requires me to punish Mr Sismanoglou to an extent and in a manner that is just in all the circumstances. In making the assessment of what constitutes a just punishment, I must have regard to all relevant sentencing considerations, including the nature and seriousness of this offending, the personal circumstances of Mr Sismanoglou and the mitigatory matters upon which he can rely.
113 I must also have regard to his youth and prospects for rehabilitation, which I have concluded are very good. He was only 18½ years old when he committed these offences. He only recently turned 20, a little over 4 months ago. He has no previous or subsequent findings of guilt or convictions for any criminal offences, and there are no other charges pending. He is an intelligent and mature young man who is capable of completing his tertiary studies and embarking on a worthwhile career. He continues to enjoy strong support from his family and others within the community. I consider that there is a low risk of him re-offending.
Sentencing Statistics
114 On 1 March 2015, the Sentencing Advisory Council published a substantial work titled Major Driving Offences, Current Sentencing Practices. That report examined sentencing practices between 2006-07 and 2012-13 for the major driving offences of culpable driving, dangerous driving causing death, negligent driving causing serious injury, and dangerous driving causing serious injury.
115 During the reference period, there were 124 cases and 146 charges of the offence of dangerous driving causing death. In respect of those offenders who were given a sentence of imprisonment, the median term of imprisonment for an individual offence was 3 years. In regards to the effect of the 100% increase in the maximum penalty from 5 to 10 years, the Council noted that the cumulative median imprisonment sentence for charges of dangerous driving causing death over the reference period increased by 20%, from 2 years and 6 months to 3 years.
116 During the reference period, there were 51 cases and 145 charges of the offence of dangerous driving causing serious injury. In respect of those offenders who were given a sentence of imprisonment, the median term of imprisonment for an individual offence was 1 year and 6 months.
117 As the Court of Appeal has repeatedly stated, there are significant limitations on the use that a sentencing court can make of such statistical information. It can only ever be of very general use and even then, caution must be exercised. It seems to me that the introduction of the new sentencing options in regards to a community correction order, and the relevant provisions in the Sentencing Act 1991 as regards parsimony, warrant additional caution.
118 Thus, whilst I have had some regard to the statistics, I have been careful not to give them undue weight or significance.
Comparable Cases
119 Whilst counsel from both parties referred me to a number of cases, some of which were useful in understanding the general principles in regards to sentencing for these types of offences, there was no real attempt to suggest that any of those cases were on all fours with the present case, and nor could there have been.
120 Again, there are limitations with regards to the use that can be made of other cases. In some cases, the offender was re-sentenced on appeal in circumstances where double jeopardy applied. In some cases, the lower maximum penalty of 5 years’ imprisonment for dangerous driving causing death applied. In some cases, there was somewhat of a brake on the sentences that could be imposed for the offence of dangerous driving causing serious injury because at the time of sentencing, the more serious offence of dangerous driving causing death had the same maximum penalty.
121 There will always be matters of distinction, often important ones, between one case and another. Other cases are not to be viewed as precedents to be followed unless distinguished. In the end, as with any sentencing exercise, the sentencing court must impose the appropriate sentence for the case at hand, having regard to the relevant legal principles and the particular circumstances of the offending and of the offender. And, that is what I propose to do in this case.
Submissions on Sentence
122 In their sentencing submissions, Mr Sismanoglou, your counsel urged this court to deal with this matter by way of a community correction order standing alone. In the alternative, they submitted that you be sentenced to be detained in a Youth Justice Centre. By way of a further alternative, Mr Richter Q.C. submitted that in the event that this Court took the view that neither of those sentencing dispositions were open, then a combination sentence involving a period of immediate imprisonment together with a suitably tailored community correction order was to be preferred to a sentence that entailed a head sentence and a non-parole period. Mr Richter QC went further and made the following two additional submissions. First, he submitted if a combination sentence is imposed, the sentence of imprisonment which is imposed should be one that includes a non-parole period. And, second, in the event that any period of adult imprisonment is imposed, this Court should, in the circumstances of this case, make a recommendation to the Adult Parole Board that they give consideration to exercising their power under section 471 of the Children, Youth and Families Act 2005 to direct that Mr Sismanoglou be transferred to a youth justice centre.
123 In reply, the prosecution submitted that the offending in this case was very serious and as such, it was simply not open to sentence Mr Sismanoglou to a community correction order. They relied on the same argument in respect of the suggested alternative of detention in a youth justice centre and added that it was not open in the circumstances to accede to that defence submission because the period of incarceration required in this case would need to be in excess of the 3 year ceiling that is applicable to youth justice detention.[20]
Suitability Reports
[20] As to which see section 32 (3) (b) of the Sentencing Act 1991.
124 After hearing a further plea on 31 August 2015, I arranged for Mr Sismanoglou to be assessed in relation to his suitability for a youth justice centre order and in relation to his suitability for a community correction order. In response, this court received two reports.
125 The report in respect to a youth justice centre order was co-authored by Stephen Riordan and Robert Ross and dated 5 October 2015. After interviewing Mr Sismanoglou and his parents and after considering the relevant materials in this case, they found him to be a suitable candidate for a Youth Justice Centre order. Although the report is couched in less than clear terms, their decision appears to be based on the fact that Mr Sismanoglou has reasonable prospects of rehabilitation and would be likely to be subjected to undesirable influences in an adult prison. It would seem to be unlikely that he was found to be particularly impressionable and immature given their assessment of him to the effect that he was a mature level headed 20 year old.
126 As I have previously noted, Mr Sismanoglou was assessed by Emelye Buttigieg and Kristine O’Connor from community corrections on 22 September 2015. Prior to interviewing him on that day, they had reviewed the relevant material. In their report of the same date, they concluded that he was a suitable candidate for a community correction order. In the event that this court decided to place Mr Sismanoglou on such an order, they recommended that it give consideration to fixing the following conditions, in addition to the core conditions: to perform unpaid community work, to be subject to supervision as directed, to undertake any mental health assessment and treatment as directed, and to undertake any program that addresses his offending behaviour, as directed.
Community Correction Orders and Boulton’s Case
127 As noted by the Court of Appeal in recent times, the sentencing landscape has changed as a result of the introduction of the community correction order as a new sentencing option and the abolition of suspended sentences. When appropriate, the community correction order can provide a flexible sentencing option, whether standing alone or in combination with a term of imprisonment, that addresses simultaneously both the need to punish an offender and the need to provide some structured setting in which to foster and facilitate that offender’s prospects of rehabilitation.
128 As directed by the relevant new provisions in the Sentencing Act 1991, in keeping with the important principle of parsimony, a sentencing Court must first be able to exclude a stand-alone community correction order as appropriate before it considers imposing the sentence of last resort, a custodial sentence. And, as noted by the Court of Appeal, this new sentencing option can, in appropriate circumstances, be imposed for serious offending where previously a suspended sentence or a term of immediate imprisonment would have been appropriate.
129 But, as has also been noted by the Court of Appeal, a community correction order, while punitive, is not as punitive as a custodial sentence. It is not to be relied on as some sort of a ‘get out of gaol free card’ in circumstances where, because of the nature and seriousness of the offending, a custodial sentence is appropriate and warranted.
130 In Boulton v The Queen[21], and subsequent cases, the Court of Appeal have made clear that the option of a combination sentence of a term of immediate imprisonment and a community correction order of suitable length and with appropriately tailored conditions, can, in an appropriate case, be utilised so as to impose a lesser period of imprisonment than would otherwise have been the case had the offender been given a head sentence with a non-parole term.
Consideration of the Submissions on Sentence
[21] [2014] VSCA 342.
131 In my view, it is not open, in the particular circumstances of this case, to place Mr Sismanoglou on a stand-alone community correction order. Such a disposition would simply not satisfy the need to give appropriate weight to the sentencing principles of general deterrence and denunciation and would not adequately punish Mr Sismanoglou for the offences that he committed.
132 To my mind, the seriousness of that offending mandates an immediate custodial sentence.
133 Furthermore, in light of the nature and seriousness of the offending, the need to properly reflect the importance of deterrence and denunciation, and the need to ensure that each of the victims is separately recognised in the overall level of punishment imposed, I have concluded that detention in a youth justice centre is not open in this case. In short, that is because a period of confinement of three years or less would not represent a just or adequate punishment for the offences that Mr Sismanoglou committed.
134 But, as Mr Kissane QC properly conceded at the further plea, that is not an end to the matter in the sense that the Court would, by that finding alone, necessarily be driven to sentence Mr Sismanoglou in a manner that involved the imposition of a head sentence and a non-parole period.
135 Before this court could even consider that most severe of sentencing options, it would first need to consider whether, given that some time in custody was warranted, a community correction order in conjunction with a sentence of imprisonment of less than two years could provide an adequate and just punishment of Mr Sismanoglou. That is no more than an application of the important principle of parsimony in the context of the new sentencing landscape that has been created by the recently introduced sentencing options regarding community correction orders, as interpreted and explained by the Court of Appeal in Boulton[22] and a number of subsequent cases[23].
[22] [2014] VSCA 342
[23] For example, see Mackay v The Queen [2015] VSCA 125, [22] (Whelan JA, with whom Ashley JA agreed).
136 Having given this matter very careful consideration, I have concluded that it would, providing that the community correction order was of sufficient length and contained sufficient conditions so as to provide the necessary and appropriate additional level of punishment to the period of imprisonment. In that way, this Court could impose a shorter custodial sentence than it otherwise would have, yet still punish Mr Sismanoglou to an extent and in a manner that is just in all the circumstances.
137
Of course, placing him on a community correction order in the manner proposed also aims to foster and maximise his chances of rehabilitation through appropriate supervision and treatment conditions. It is not just
Mr Sismanoglou who stands to benefit from such a course, but the community as well. If, on his release from custody, he receives the necessary assistance which that order is designed to facilitate, and he complies with all aspects of that order, then his prospects will no doubt be enhanced and his chances of re-offending, which are already low, reduced even further.
138
I am cognisant of the fact that this will represent the first time that
Mr Sismanoglou has been involved in the criminal justice system. He has never been incarcerated before and I have no doubt that for that and other reasons he will likely find the experience of a custodial sentence a difficult one. I have borne that matter in mind when determining the appropriate sentence to impose. The period of imprisonment which will be imposed is, in my view, the minimum period that justice requires. In my view, to impose a lesser period would simply not adequately reflect the importance that needs to be attached to the sentencing principles of general deterrence and denunciation and would not justly punish Mr Sismanoglou for the criminal conduct in which he engaged.
Sentence
139 After having balanced and weighed the various sentencing considerations in this case as best I can, I have decided, subject to Mr Sismanoglou’s consent, to impose a combination sentence as follows.
140 In respect of each of the three charges to which he has pleaded guilty, he will be convicted and sentenced to an aggregate term of 21 months’ imprisonment. I do not propose to fix a non-parole period in respect of that sentence.
141 In addition, Mr Sismanoglou will be placed on a community correction order for a period of 2 years.
142 Apart from the mandatory conditions of such an order, there will be the following additional conditions. He will be required to perform 250 hours of unpaid community work. He will have to undertake mental health treatment and rehabilitation as directed. He will have to be subject to supervision, monitoring and management by a community corrections officer as directed. And, he will also have to undertake offender behaviour programs as directed.
143 What I will do now counsel is have my associate provide each of you with a copy of the proposed community correction order. I will then leave the Bench in order to allow each of you to check that it is in order and in order to enable you, Mr Konstas, to go through that document with your client fully and carefully to ensure that he fully understands the nature and conditions of that order, all of his obligations under it, and the potential consequences for him if he failed to comply with any of its conditions. Please also ascertain whether he is still prepared to be placed on such an order. Once you are satisfied that he understands all of the matters to which I have just referred, please let my associate know and I will then return to the Bench and complete my sentencing remarks.
(Short adjournment.)
144 HIS HONOUR: Mr Konstas, are you satisfied that your client understands the nature and effect of the proposed community correction order?
145 MR KONSTAS: Yes, your Honour, I am.
146 HIS HONOUR: Does he understand all of the obligations to which he would be subject on such an order?
147 MR KONSTAS: He does, your Honour.
148 HIS HONOUR: Does he also understand that if he breaches the order in any way, he can be resentenced for these offences and in that event he would almost certainly receive a further term of imprisonment?
149 MR KONSTAS: Yes, your Honour.
150 HIS HONOUR: Does your client consent to being placed on such an order?
151 MR KONSTAS: He does, your Honour.
152 HIS HONOUR: Very well. He will now need to sign the community correction order as will I.
153 Mr Konstas, could you please accompany my acting associate to the dock so that, in the event that your client needs any further explanation or assistance before he signs the order, you can provide it to him.
(Order signed and acknowledged by the offender)
154 HIS HONOUR: Is that your signature on that document, Mr Sismanoglou?
155 OFFENDER: Yes, it is.
156 HIS HONOUR: Before you are taken into custody Mr Sismanoglou, you should understand and not forget that if you fail to comply with any one of the conditions of that community correction order once you are released from serving the 21 month sentence, one of which is that you not commit any further offence whilst that order is in place, you will likely face breach proceedings in this court and be re-sentenced to a further term of imprisonment. Is that clear to you, Mr Sismanoglou?
157 OFFENDER: Yes, your Honour.
158 HIS HONOUR: If you re-offend at any time in the two years following your release from custody, which is when you will be subject to the community correction order, you will be in breach of that order. You should clearly understand that many driving offences, including driving whilst disqualified, are capable of breaching your community correction order. Are you clear about that, Mr Sismanoglou?
159 OFFENDER: Yes, your Honour.
160 HIS HONOUR: Good. I trust that I will not have to remind you of this exchange in the future. You may be seated.
Section 6AAA Indication
161 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to these offences, and had he been convicted of those offences at trial, Mr Sismanoglou would have been sentenced to a total effective sentence of 4½ years’ imprisonment, for which a non-parole period of 2 years and 8 months would have been fixed.
Pre-Sentence Detention
162
In order to avoid any possibility of confusion, I specifically state that
Mr Sismanoglou has not served any period by way of pre-sentence detention in respect of the sentence imposed on him today.
Recommendation in relation to the Adult Parole Board’s power under section 471 of the Children, Youth and Families Act 2005
163 Having heard from each of the parties and after a consideration of the particular circumstances that relate to Mr Sismanoglou, I have decided to accede to the defence request for me to recommend that the Adult Parole Board give consideration to exercising its power under section 471 of the Children, Youth and Families Act 2005 to direct that Mr Sismanoglou be transferred to a Youth Justice Centre to serve his sentence there.
164 Accordingly, I will ensure that the record of the sentencing orders of this Court will make reference to that recommendation and that a copy of my sentencing reasons will be forwarded to the Adult Parole Board for their consideration.
165 I want to make clear, however, that the ultimate decision is properly one for the Adult Parole Board.
166 In imposing the sentence that I have in this case, I have not made any assumptions as to what decision the Adult Parole Board will or may reach. It would be inappropriate for me to do so.
167 It has only come to my attention very recently, that the Adult Parole Board will need to receive a specific application from the legal representatives who act for Mr Sismanoglou for them to exercise their powers under section 471 before they will consider doing so.
168 In order to assist this process, I will ensure that a copy of my revised sentencing reasons are sent to the Adult Parole Board and to the parties as soon as they are available, which I hope will be sometime today.
Orders in Respect of Mr Sismanoglou’s Licence
169 I note that Mr Sismanoglou currently holds a valid driver’s licence.
170 I further note that the combined effect of a number of relevant provisions of the Sentencing Act 1991 require any court that sentences an offender for an offence of dangerous driving causing death or serious injury, to cancel that offender’s licence and order that he or she be disqualified from obtaining any further driver's licence or permit for a period specified by the Court, and that such disqualification must be for a period that is not less than 18 months.[24]
[24] See sections 89 (1) (a), 87 P (d) and 89 (2) (a) of the Sentencing Act 1991. See also section 319 of the Crimes Act 1958.
171 The mandatory minimum period of disqualification applies to both types of dangerous driving offences.
172 I must, in respect of each charge, consider and ultimately state what I regard to be the appropriate length of any disqualification period and the date on which that disqualification period should commence. I must also consider whether it is appropriate to effect any degree of cumulation as between those respective disqualification periods. As part of a consideration of those matters, I have must regard to a number of relevant matters, including the seriousness of the offending, the period of imprisonment actually imposed and the need for the period of cancellation and disqualification itself to serve its part as a punitive element in the context of the total punishment imposed, the degree of additional punishment that the periods of cancellation and periods of disqualification of his licence will represent, and the effect or impact that those orders may have on Mr Sismanoglou’s prospects of rehabilitation.
173 In considering the length of the disqualification period that should be imposed on him, I have had regard to a number of relevant decisions which provide guidance as to the matters that are appropriate to take into consideration, including R v Lefabure[25], R v Tran[26] and R v Caldwell[27].
[25] (2000) 31 MV 131; 112 A Crim R 41.
[26] (2002) 4 VR 457.
[27] (2004) 8 VR 1.
174 Ultimately, I have fixed an effective disqualification period that will, in a practical sense, punish Mr Sismanoglou for a reasonable period beyond his release from custody, but not for so long that it would unduly punish him or interfere unfairly with his capacity to complete the various conditions of the community correction order or undertake further study or employment.
175 After bearing all of the relevant matters in mind, I have decided to make the following orders in relation to his driving licence.
176
In respect of each charge, and pursuant to section 89 (1) (a) and (2) (a) of the Sentencing Act 1991, I order that any driver’s licences or permits held by
Mr Sismanoglou be cancelled.
177 I further order that he be disqualified from obtaining any further licences or permits to drive for the following periods.
178 In respect of charge 1, dangerous driving causing death, 33 months.
179 In respect of charge 2, dangerous driving causing serious injury to Ella Marchant, 24 months.
180 In respect of charge 3, dangerous driving causing serious injury to Marion Bregiannis, 18 months.
181
All of those disqualification periods are to commence today, which means that they will, to a significant extent, be served concurrently. The practical effect of those orders, and my intention in fixing the periods that I have, is to cancel
Mr Sismanoglou’s current licence and to disqualify him from obtaining any other licence or permit to drive until 12 months after he completes serving the sentence of 21 months’ imprisonment imposed on him today.
Custody Management Issues
182 I propose to have noted on the relevant custody management documentation that Mr Sismanoglou will be a vulnerable prisoner on account of the following: he is of a young age, he has never had any previous contact with the criminal justice system or been in custody previously, and he is likely to experience heightened levels of anxiety in custody.
183 Are there any other matters that should be noted, counsel?
184 MR KONSTAS: No, your Honour.
185 MR GILLIGAN: No, your Honour.
186 HIS HONOUR: Very well. Mr Konstas, once I leave the Bench my associate can provide you with the contact details of the relevant person from the Adult Parole Board that you will need to speak to in relation to the application under section 471.
Other Matters
187 Are there any matters which either counsel wish to raise at this stage, in relation to the either the sentence or sentencing reasons?
188 MR GILLIGAN: No, your Honour.
189 MR KONSTAS: No, your Honour.
190 HIS HONOUR: Alright. I will now stand down until the trial matter is ready to commence.
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