R v VENETSANOS - [2004] SASC 401

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VENETSANOS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FIRST OFFENDERS - SUSPENSION OF SENTENCE
Appellant pleaded guilty to two counts of causing bodily harm by dangerous driving pursuant to s19A(3) of the Criminal Law Consolidation Act 1935 (SA) - appellant deliberately swerved vehicle towards a group of pedestrians - disputed facts hearing as to whether appellant knew a particular man was part of the group - animosity between the appellant and that man - appellant only eighteen at time of offence - first offence - sentencing Judge imposed a head sentence of two years and three months, non-parole period of one year - appellant appeals on the grounds that the sentencing Judge failed to give sufficient weight to personal factors, in particular, the appellant's age, and should have suspended the sentence - sentence not manifestly excessive or requiring suspension - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s19A(3); Criminal Law (Sentencing) Act 1988 (SA) s10(1), referred to.
R v Payne (2004) 89 SASR 49; R v Johnston (1985) 38 SASR 582; R v Peake (2002) 221 LSJS 407, applied.
R v Zeunert [2004] SASC 165, discussed.
R v Godwin (2001) SASR 195, considered.

R v VENETSANOS
[2004] SASC 401
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J In my view this appeal should be dismissed for the reasons given by Anderson J.
BLEBY J The circumstances of this offending and the relevant personal circumstances of the appellant are set out in the reasons for judgment of Anderson J. I will not repeat them.
Many of the circumstances put in mitigation by counsel for the appellant are circumstances commonly encountered in cases of this nature. There is seldom an intention to cause harm. A relatively high proportion of offenders have no criminal record or are of previous good character. A plea of guilty is almost invariably accompanied by expressions of remorse and contrition. The offence is very often committed by young, inexperienced and emotionally immature drivers. Most offenders will pose no danger to the community if released on a suspended sentence.
Those are common and recurring features associated with breaches of s 19A of the Criminal Law Consolidation Act 1935. They were recognised as such by the Court in R v Payne (2004) 89 SASR 49 at 66, [61]. It must be remembered that it is against that background that Parliament has created the offence and set the maximum penalties. In other words, Parliament must be assumed to have known that those are common features associated with the offence.
Furthermore, the penalties for offences under s 19A of the Criminal Law Consolidation Act are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v VENETSANOS

Details

AGLC: R v VENETSANOS [2004] SASC 401
Case: [2004] SASC 401
Decision Date: 7 December 2004

CaseChat Overview and Summary

The case of R v VENETSANOS involved the appellant who pleaded guilty to two counts of causing bodily harm by dangerous driving. The appellant deliberately swerved their vehicle towards a group of pedestrians, leading to the injuries of several individuals. The case proceeded to a disputed facts hearing to determine whether the appellant knew a particular man who was part of the group, as there was animosity between them. The appellant was eighteen at the time of the offence and had no prior criminal record. The sentencing Judge imposed a head sentence of two years and three months, with a non-parole period of one year. The appellant appealed the sentence on the grounds that the Judge did not sufficiently consider personal factors, particularly the appellant's age, and that the sentence should have been suspended.

The legal issues in this appeal centred on whether the sentencing Judge erred in not adequately considering the personal circumstances of the appellant, specifically their age and the fact that this was their first offence. The appellant argued that these factors warranted a lighter sentence or the suspension of the sentence entirely. The Court had to assess the appropriateness of the sentence in light of the statutory framework and the principles of sentencing for first-time offenders.

The Court considered the appellant's arguments and found that the sentencing Judge had indeed taken into account the appellant's age and the fact that it was their first offence. However, the Court held that the sentence imposed was not manifestly excessive nor did it require suspension. The Court emphasised the gravity of the offence and the need to deter such dangerous driving behaviour, especially given the potential for serious harm or death. The Court concluded that the sentence was appropriate given the circumstances and the need to uphold public confidence in the justice system. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders