R v Tzanis

[2005] NSWCCA 274

CITATION:	REGINA v George TZANIS [2005] NSWCCA 274 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 June 2005
JUDGMENT DATE:	4 August 2005
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 33; Hunt AJA at 34; Howie J at 35; Buddin J at 36
DECISION:	1. Appeal allowed; 2. Set aside the sentence for the offence of dangerous driving occasioning death; 3. The Appellant is sentenced to imprisonment for three years and six months commencing on 12 August 2004 and expiring on 11 February 2008 with a non-parole period of two years expiring on 11 August 2006; 4. His Honour's order for disqualification of licence is affirmed

CATCHWORDS:	CRIMINAL LAW - Appeal - Sentence - s52A(3)(c) Crimes Act 1900 - Dangerous Driving Occasioning Death - Dangerous Driving Occasioning Grievous Bodily Harm - Aggravating factors - s21A(2)(g) and s21A(2)(m) Crimes (Sentencing Procedure) Act 1999 - Whether trial judge erred in considering harm caused by offences - Whether trial judge erred by considering that there were multiple crimes - CRIMINAL LAW - Sentencing - s52A(1)(c) and s52A(3)(c) Crimes Act 1900 - Dangerous Driving Occasioning Death - Dangerous Driving Occasioning Grievous Bodily Harm - Objective factors - Driving whilst licence suspended - Where intoxicated - Where warned by passenger - Where driving erratically in a narrow compass - High Prospects of rehabilitation - Unlikely to re-offend - Where offender voluntarily returned to Australia with knowledge of likelihood of custodial sentence - Guilty plea
LEGISLATION CITED:	Crimes Act 1900: s52A(1)(c), s52A(3)(c) Crimes (Sentencing Procedure) Act 1999: s3A, s21A(2)(g), s21A(2)(m) Criminal Appeal Act 1912: s6(3)
CASES CITED:	Bollen v The Queen (1998) 99 A Crim R 510 Mitchell v The Queen (1998) 104 A Crim R 523 R v Berg [2004] NSWCCA 300; 41 MVR 399 R v Birmingham (No 2) (1997) 96 A Crim R 545 R v Cramp [2004] NSWCCA 264 R v Jurisic (1998) 45 NSLWR 209 R v Lykouras [2005] NSWCCA 8 R v Miller [1995] 2 VR 348 R v Owens (1987) 30 A Crim R 59 R v Penn (1994) 19 MVR 367 R v Previtera (1997) 94 A Crim R 76 R v Tadrosse [2005] NSWCCA 145 R v Way (2004) 60 NSWLR 168 R v Whyte (2002) 55 NSWLR 252 R v Wickham [2004] NSWCCA 193 Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 2/2002 (2002) 137 A Crim R 196
PARTIES:	George TZANIS (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2005/606
COUNSEL:	A Haesler SC, P Johnson (Appellant) R Cogswell SC, J Girdham, A Mitchelmore (Respondent)
SOLICITORS:	S E O'Connor (Legal Aid Commission) (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0445
LOWER COURT JUDICIAL OFFICER:	Taylor DCJ

2005/606

SPIGELMAN CJ
WOOD CJ at CL
HUNT AJA
HOWIE J
BUDDIN J

Thursday 4 August 2005

Regina v George TZANIS

Judgment

1 SPIGELMAN CJ: The Appellant pleaded guilty to one count of dangerous driving occasioning death contrary to s52A(1)(c) of the Crimes Act 1900 and one count of dangerous driving occasioning grievous bodily harm contrary to s52A(3)(c) of that Act. The maximum penalties for the offences were, respectively, imprisonment for ten years and seven years. The sentencing judge imposed a period of imprisonment of five years with a non-parole period of three years for the first offence and imprisonment for a fixed term of eighteen months for the second offence. The term for the second offence was entirely concurrent and expires on 11 August 2005.

2 There are two remaining grounds of appeal:

1. The learned sentencing judge erred by having regard to s21A(2)(g) and s21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 as aggravating factors.

2. The sentence imposed was manifestly excessive.

The Background Facts

3 On the evening of Wednesday 14 February 2001 the Appellant left a hotel where he had been drinking for some hours with some friends. During the course of driving the Appellant went around the corner of the first intersection spinning the wheels and almost colliding with a parked car on the other side of the road. One of the passengers asked him to drive him straight home, which the Appellant did. The Appellant dropped him off and drove off quickly. The events leading up to the accident were described by his Honour as follows:

“About 12.30am the offender’s vehicle was seen to drive west along Talavera Road, Marsfield. At this time the vehicle was going at speed over a crest in the road at the intersection of Herring Street. A witness statement tendered in evidence states that the vehicle became airborne. The witness lost sight of the vehicle on the crest and did not see it again until he drove past the collision.
The physical evidence at the scene shows that the offender’s vehicle’s front passenger side wheel collided with the southern kerb of Talavera Road, approximately 50 metres west of the crest. At this point black [tyre] marks indicate the offender’s vehicle commenced a gradual clockwise spin. The offender’s vehicle continued to travel in a westerly direction. Approximately 90 metres after hitting the kerb, the rear of the vehicle collided with a timber power pole situated at the northern kerb of Talavera Road.
The collision was a high-speed impact causing the rear of the vehicle to be compressed around the power pole and invading the rear seat space. The vehicle then spun anticlockwise, coming to a stop with the front of the vehicle touching a brick wall.”

4 The Appellant displayed various signs of disorientation and panic, including running away when the first police vehicle arrived. A reading of 0.135 grams of alcohol per 100 millilitres of blood was taken from the Appellant. This falls within the high portion of the mid-range prescribed concentration of alcohol. As a result of the collision one passenger died and the other suffered grievous bodily harm in the form of a closed head injury, lacerations to his lip and upper gum and a partial collapse of the lower lobe of his left lung.

5 The Appellant left Australia for Greece where he became a Greek citizen and joined the Greek army. After about two years he returned to Australia voluntarily aware that a custodial sentence was inevitable. His Honour gave full recognition to this voluntary return and to the considerable utilitarian value of the plea. His Honour accepted the high level of contrition manifest by the Appellant describing him as “shattered” and “devastated” by the tragedy. His Honour found that the prospects of rehabilitation where therefore high and that this was a relevant factor in sentencing a person of the age of the Appellant at the time of the offence and twenty-one at the time of sentence.

The Circumstances of Aggravation

6 His Honour directed himself in accordance with the objects of sentencing set out in s3A of the Crimes (Sentencing Procedure) Act 1999 and the list of aggravating and mitigating factors in s21A of that Act. Those sections relevantly provide:

“ 3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
21A Aggravating, mitigating and other factors in sentencing
(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

…

(m) the offence involved multiple victims or a series of criminal acts,
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
…
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.”

7 His Honour set out the objects in s3A and identified the relevant parts of s21A in the following passage of his judgment:

“The purposes of sentencing are to ensure that an offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce the conduct of the offender and to recognise the harm done to the victims of the crimes and to the community.
The timing of the plea is such that s21A of the Crimes (Sentencing Procedure) Act (1999) [sic] is applicable, in particular, para 2 (d), the offender having a record of previous convictions. Para 2 (g), the harm caused by the offences was substantial and (m), that there were multiple victims.”

8 Subsequently in his judgment his Honour made a reference to victim impact statements, as follows:

“I have referred to the harm resulting from these offences. I have read the victims’ impact statements. I will consider those statements on sentence. Prior to the reforms, concerning such statements, the Courts assumed the very serious harm flowing from such criminal conduct. Reading a statement confirms that those assumptions that have been made over the years were correct.”

9 The Appellant contends that his Honour misdirected himself on the list of aggravating factors by taking into account each of s21A(2)(g) and (m).

10 It is not entirely clear how his Honour took into account par (2)(g). His reference in his remarks on sentence was cryptic:

“The harm caused by the offences was substantial.”

11 The Appellant correctly contends that this was not an aggravating factor for the two particular offences. It was an essential element of one offence that a person died and of the other offence that grievous bodily harm was committed upon that person. In the case of death there can be no issue of fact and degree. The injury was necessarily “substantial”.

12 Accordingly, if his Honour took this element into account as an aggravating factor he had “additional regard” to a matter which was already “an element of the offence” contrary to the concluding words of s21A(2). (See R v Way (2004) 60 NSWLR 168 at [106].)

13 In the case of grievous bodily harm, while the injury is also necessarily “substantial”, issues of fact and degree may arise. The seriousness of the injury is relevant to the objective gravity of the offence. (See R v Way supra at [107].)

14 The Crown drew attention to the reference his Honour made later in the course of his remarks on sentence when he introduced the reference to victim impact statements by the sentence:

“I have referred to the harm resulting from these offences.”

15 That this sentence may be a reference back to the part of his Honour’s remarks directed to par 2(g) is suggested by the use of the word “harm” which appears only in the context of “emotional harm”. If it is exclusively a reference of this character then this case will give rise to a significant issue as to the approach this Court has hitherto taken to the use of victim impact statements (see R v Previtera (1997) 94 A Crim R 76; Bollen v The Queen (1998) 99 A Crim R 510; Re Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 2/2002 (2002) 137 A Crim R 196 at [59]; R v Berg [2004] NSWCCA 300; 41 MVR 399 at [43]–[45], [48]). There are differences amongst the States in this regard which do not seem to be explicable by differences in the respective statutory regimes (cf R v Birmingham (No 2) (1997) 96 A Crim R 545 at 549; Mitchell v The Queen (1998) 104 A Crim R 523 especially at 531–533; and see also the apparent change in the attitude of the Victorian Court of Criminal Appeal between R v Penn (1994) 19 MVR 367 and R v Miller [1995] 2 VR 348 esp at 354).

16 It appears that no suitable vehicle has emerged for the purposes of the grant of special leave by the High Court to resolve these differences. This Court has sat a Bench of five in order to reconsider Previtera and Bollen if necessary. Nevertheless it is not appropriate to do so unless the issue squarely rises.

17 In my opinion, it does not arise. The reference by his Honour to par (2)(g) cannot be understood exclusively, and perhaps not at all, to be a reference to the harm caused to the family of the deceased whose victim impact statements were read to the Court. The reason for that is that his Honour explicitly used the plural of “offences” in the crucial passage which, to repeat, is:

“Para 2(g), the harm caused by the offences was substantial.”

18 This clearly encompasses a reference to the second count, being the count of inflicting grievous bodily harm. There was no victim impact statement with respect to this count. Nevertheless his Honour said that he took into account par (2)(g) as an aggravating factor for both offences. This indicates that, with respect to the dangerous driving causing death offence, he took into account the fact of death. This was impermissible. (See R v Wickham [2004] NSWCCA 193 at [32]; R v Cramp [2004] NSWCCA 264 at [65].)

19 Similarly, his Honour’s reference to s21A(2)(m) was in error. The Court had before it two offences for each of which the Appellant stood to be sentenced. (See R v Tadrosse [2005] NSWCCA 145, esp at [28].)

20 This is a case in which error has been identified. The Crown submits that pursuant to s6(3) of the Criminal Appeal Act 1912 this Court should not find that a lesser sentence is warranted in law.

Re-sentencing the Appellant

21 The principle objective and subjective circumstances have already been set out above. The Appellant does not doubt that the offence was a very serious one. The Appellant drove whilst intoxicated and continued to do so after he was warned by one of his fellow passengers who insisted on being dropped off. He drove at high-speed as he approached the crest of the hill late at night. Indeed the speed was such that as he came over the crest of the hill an eyewitness said that car was airborne.

22 The particular circumstances of the ultimate collision also indicate that he was driving in an erratic manner and indeed it was hitting the kerb which caused the spin of the vehicle that led to the ultimate high-speed impact and the death and injury of the passengers. The agreed statement of facts tendered before his Honour indicated that the accident commenced in the following way:

“From the physical evidence at the scene it appears the defendants [sic] vehicles front passenger side wheel collided with the southern kerb of Talavera Road approximately fifty metres west of the crest.
At this point black tyre skid marks indicate the defendants [sic] vehicle commenced a gradual clockwise spin …”

23 This is the kind of erratic driving that is often associated with intoxication. The Appellant was not charged under s52A(1)(a) and s52A(3)(a) - namely being under the influence of liquor. He was charged under s52A(1)(c) and s52A(3)(c) - namely that he was driving the vehicle “in a manner dangerous to other persons”. It is not necessary to resolve the issue whether the section creates a single offence with alternative particulars, or multiple offences. (See R v Lykouras [2005] NSWCCA 8 at [14]-[16].) Even on the charge as laid, intoxication is a relevant consideration at least where, as here, the intoxication clearly contributed to the dangerous driving. (See R v Owens (1987) 30 A Crim R 59 at 65.)

24 I refer to this Court’s guideline judgment with respect to this offence first set out in R v Jurisic (1998) 45 NSLWR 209 and developed in R v Whyte (2002) 55 NSWLR 252. Such a guideline must be understood as an indicator (see Whyte esp at [113]). The numerical guideline suggested in Jurisic and Whyte must also be understood as a “guide” or a “check” (see Whyte at [232]).

25 In accordance with this authority, the Court should assess the degree of moral culpability of the Appellant by reference to the objective circumstances of the offence. The guideline judgments outline a list of frequently recurring aggravating factors, but there may be other such factors and the factors identified all vary in their intensity (see Whyte [216], [221] and [228]).

26 In the present case only some of the factors identified in the earlier judgments are present. There was no escaping of a police pursuit, no competitive driving or showing off. The length of the journey during which others were exposed to risk, in a charge which focuses on “driving in a manner dangerous” rather than on intoxication, cannot be seen as long. He did however ignore warnings, he was intoxicated to a significant degree and there was evidence of erratic driving. However, the evidence of erratic driving was in a narrow compass. It consisted of the evidence that he took a corner at excessive speed at a time prior to the third passenger being dropped off and then, in the period immediately preceding the collision, he drove over the crest of a hill and became airborne and shortly thereafter hit the kerb. It may well be that there is a proper basis for an inference that this was not the only erratic driving on the evening, but the actual evidence in this respect is very limited.

27 Taking all these factors into consideration, it is, in my opinion, appropriate to conclude that the Appellant’s moral culpability was high.

28 As noted in Whyte at [233] the numerical guideline focuses on the objective circumstances of the offence. In this case the subjective circumstances are entitled to considerable weight. The offence was committed by a very young man who is, as his Honour found, devastated by the fact that his conduct lead to the death of one of his friends and the serious injury of another. His sense of contrition is clearly of a high order. As his Honour indicated the prospects of rehabilitation are very high. It is true that this offence was committed at a time when he had his driving permit suspended but that should not, in the light of all of the circumstances, detract significantly from the conclusion that the Appellant is unlikely to re-offend.

29 Particular weight has to be given to the Appellant’s voluntary return to Australia. No doubt there were personal reasons for this which are not before the Court. Nevertheless, he had become a citizen of another country and had fulfilled his obligations of military service in that country. To voluntarily return in circumstances where he knew he was facing a custodial sentence indicates a preparedness to accept responsibility for his past conduct and a degree of commitment to his own future as a law-abiding citizen of Australia which is a highly unusual subjective circumstance of this particular case.

30 With respect to the offence on the count of dangerous driving causing grievous bodily harm which expires shortly I can see no reason for this Court to intervene: No lesser sentence is warranted in law (see s6(3) of the Criminal Appeal Act 1912).

31 With respect to the principal offence I would, however, intervene and impose a lower sentence. There are two distinct offences and it is not, in my opinion, appropriate to make the sentences wholly concurrent. Some element of cumulation is appropriate. I would delay the commencement of the principal sentence by six months to ensure that there is a discrete punishment for each offence. The sentence for the principal offence should be quashed. In all of the circumstances referred to above I would impose a sentence of three years and six months with a non-parole period of two years. The statutory ratio would lead to a period of actual incarceration of three years, if the two offences were considered together. His Honour found special circumstances. There was no challenge to this finding. The adjustment of six months is based on the adoption of his Honour’s finding in this regard.

32 Accordingly the orders I propose are:

1 Set aside the sentence for the offence of dangerous driving occasioning death.

2 The Appellant is sentenced to imprisonment for three years and six months commencing on 12 August 2004 and expiring on 11 February 2008 with a non-parole period of two years expiring on 11 August 2006.

3 His Honour’s order for disqualification of licence is affirmed.

33 WOOD CJ at CL: I have read in draft the judgment of Spigelman CJ and agree with the orders proposed and the reasons therefor.

34 HUNT AJA: I agree with Spigelman CJ.

35 HOWIE J: I agree with the orders proposed by the Chief Justice for the reasons given by him.

36 BUDDIN J: I agree with Spigelman CJ.

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09/08/2005 - Incorrect spelling of Counssel (Mitchelmore) - Paragraph(s) Front sheet