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Vasilevski v The Queen

Vasilevski v The Queen

Case [2018] VSCA 7 2 February 2018

Appeal

Reckless Conduct Endangering Serious Injury

Dangerous Driving Causing Death

Failing to Stop Motor Vehicle After an Accident

Sentencing

Errors in Orders for Cumulation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0066

STEVEN VASILEVSKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2018
DATE OF JUDGMENT:	2 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 7
JUDGMENT APPEALED FROM:	DPP v Vasilevski, (Unreported, County Court of Victoria, Judge Douglas, 21 March 2017)

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CRIMINAL LAW — Appeal — Sentence — Reckless conduct endangering serious injury, dangerous driving causing death and serious injury, failing to stop motor vehicle after an accident that caused death and serious injury — Whether sentences for reckless conduct endangering serious injury and for failing to stop manifestly excessive — Whether errors in orders for cumulation — Whether double punishment on charges of failing to stop — Leave to appeal refused — Road Safety Act 1986 (Vic) s 61 — Criminal Procedure Act 2009 (Vic) ss 280(1) and 281(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Richter QC with Mr H Rattray	Galbally & O’Bryan
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
SANTAMARIA JA:

Introduction

Steven Vasilevski, the applicant, is 36 years old.[1] He has prior convictions from 2002 and 2003 for exceeding the speed limit, and from 2009 for using a mobile telephone whilst driving. Significantly, he has a conviction in 2012 for driving whilst exceeding the prescribed concentration of alcohol.
[1]He was born on 13 August 1981, and was aged 33 at the time of offending.

The applicant pleaded guilty in the County Court on 9 November 2016 to two charges of reckless conduct endangering serious injury; one charge of theft; one charge of dangerous driving causing death; one charge of dangerous driving causing serious injury; one charge of failing to stop after a fatal accident; one charge of failing to stop after an accident that caused serious injury; one charge of failing to render assistance after a fatal accident; one charge of failing to render assistance after an accident that caused serious injury; and five summary charges.

Following a lengthy plea, on 21 March 2017 the judge imposed a total effective sentence of nine years and seven months’ imprisonment,[2] and fixed a non-parole period of seven years and six months, in accordance with the following table:
[2]The applicant was also fined $600.

Charge Offence Sentence Cumulation

1 Reckless conduct endangering serious injury[3] 30 months 9 months

2 Reckless conduct endangering serious injury 30 months 9 months

3 Theft[4] 3 months nil

4 Dangerous driving causing death[5] 48 months Base

5 Dangerous driving causing serious injury[6] 30 months 12 months

6 Failing to stop motor vehicle after a fatal accident[7] 36 months 18 months

7 Failing to stop motor vehicle after an accident that caused serious injury[8] 36 months 18 months

8 Failing to render assistance after a fatal accident[9] 36 months nil

9 Failing to render assistance after an accident that caused serious injury[10] 36 months nil

Summary charges

1 Contravening…

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 Vasilevski v The Queen

Details

AGLC: Vasilevski v The Queen [2018] VSCA 7
Case: [2018] VSCA 7
Decision Date: 2 February 2018

CaseChat Overview and Summary

Vasilevski v The Queen involved the appellant who was convicted of several charges related to a motor vehicle accident that resulted in the death of one person and serious injury to another. The appellant was found guilty of reckless conduct endangering serious injury, dangerous driving causing death and serious injury, and failing to stop the motor vehicle after the accident. The appellant appealed against the severity of the sentences imposed and alleged errors in the orders for the cumulation of sentences and potential double punishment. The Court was required to determine whether the sentences for reckless conduct endangering serious injury and for failing to stop were manifestly excessive and whether there were any errors in the orders for the cumulation of sentences and potential double punishment.

The Court considered the principles of sentencing and the relevant statutes. It held that the sentences were not manifestly excessive and that there were no errors in the orders for the cumulation of sentences. The Court found that the sentence for failing to stop the motor vehicle after the accident was appropriate and not excessive, and that there was no double punishment on the charges of failing to stop. The Court also held that the sentence for reckless conduct endangering serious injury was not manifestly excessive and that the orders for the cumulation of sentences were correct.

The Court found that the appellant's appeal against sentence was without merit. It held that the sentences imposed were appropriate and not manifestly excessive, and that there were no errors in the orders for the cumulation of sentences. The Court therefore dismissed the appeal. The Court did not grant leave to appeal to the Court of Appeal.

The final orders of the Court were that the appeal against sentence be dismissed and that the sentences imposed by the trial judge remain in place. The Court also held that the appellant was not entitled to leave to appeal to the Court of Appeal.

Orders