DPP v Papachristodoulou [2017] VCC 216

On 31 October 2015, you were driving your father's Holden ute in Doncaster Road when you were involved in a motor car collision. As a result of excessive speed and fishtailing, your vehicle collided with another vehicle driven by Jason Huang. Both Mr Huang and his wife Ching Ru Chao, who was a passenger in the other vehicle suffered serious injury due to your negligent driving. At the time of the collision, the road was wet but it was not raining and the traffic flow was moderate.
The prosecution case is that prior to the collision in Doncaster Road, you were driving south on Blackburn Road where you deliberately caused the back end of your Holden ute to drift from side to side and fishtail, causing the tyres to spin on the surface of the road as you did so. At the time you were in the left hand lane of the two southbound lanes. The small swings would cause the back end of the Holden ute to cross the boundary line of that lane. The swings were small and largely controlled and after each one, you straightened the vehicle.
The prosecution relied on the evidence of an independent witness, Anthony McDonald, who gave evidence that when he was travelling behind you in Blackburn Road, he observed your vehicle fishtailing like this on three occasions. Mr McDonald described your vehicle as drifting from side to side and swinging out of its lane. He said he had his window down slightly and he could hear the wheels of your vehicle spinning and the engine revving. There were no vehicles between his vehicle and yours.
The first occasion he observed your vehicle fishtailing on Blackburn Road was near to Canopus Drive when he was approximately a hundred to a couple of a hundred metres behind you. The second occasion was near to Nonda Avenue and third occasion was just before Leura Street. On these occasions, Mr McDonald was approximately 80 to 100 metres behind you.
When he was cross-examined, Mr McDonald denied that there were any cars between your vehicle and his vehicle and he denied that he had been too far away to observe it fishtailing. Mr McDonald also denied that he was confused and had mixed up his observations of your vehicle fishtailing at Blackburn Road with the later incidents of fishtailing in Doncaster Road.
You denied fishtailing when you were travelling south on Blackburn Road. You relied on the evidence of your passenger, Bobby Michalopoulos, who in examination-in-chief denied that any fishtailing took place on Blackburn Road. However, Bobby also said that he was on his mobile phone and not paying attention to the road. Also when he was cross-examined as to whether any fishtailing took place in Blackburn Road, he said he could not remember it taking place.
I am satisfied beyond reasonable doubt that you caused your vehicle to fishtail on three separate occasions when you were driving south on Blackburn Road. I accept the evidence of Mr McDonald who was a straightforward and convincing witness. I accept his evidence that there were no cars between your respective vehicles and that he was close enough to observe the actions of your vehicle. In addition, I accept that his window was a bit open and he could hear the sound of your vehicle's wheels spinning and the sound of your exhaust. In accepting Mr McDonald's evidence, I have taken into account that he is an independent witness and that on returning home after the collision, he took notes of his observations of your driving on that day.
With respect to the evidence of Bobby Michalopoulos, he was not helpful to your case. He gave evidence that he was a long-time friend of yours and that you grew up together. At worst, I suspect that his friendship has affected his memory with respect to your driving on Blackburn Road on the day of the collision. At best, I suspect that he was concentrating on his mobile phone and he simply does not remember accurately.
Moving on to what happened on Doncaster Road, the prosecution case is that Doncaster Road has three lanes in each direction. You turned left and drove east in the middle lane and again deliberately fishtailed the vehicle as you drove towards the crest of the hill. The back end of the vehicle swung out across all three lanes. You performed five more swings as you approached the crest. Each swing put your vehicle on a 45 degree angle to the direction you were travelling in. You revved the engine on each swing to control the vehicle.
However as a result of fishtailing over the crest, you lost control of the vehicle. The vehicle slid across the eastbound lanes over the median strip and into the closest westbound lane directly into the path of the vehicle driven by Mr Huang. The front passenger side of the Holden ute struck the front driver side of Mr Huang's vehicle with the force of the impact pushing it backwards and causing the significant damage to both vehicles. A third vehicle lightly collided with the back of Mr Huang's vehicle, however it caused minimal damage and the driver was uninjured.
Bystanders assisted in removing Mr Huang and his wife from their vehicle and you and your passenger also provided assistance. Investigations carried out after the collision revealed that 2.5 seconds before the impact, the Holden ute was travelling at 105 kilometres per hour. The applicable speed limit was 70 kilometres per hour. You had applied the brakes in an attempt to stop the vehicle which skidded for at least 22 metres, reducing the speed of the vehicle to 59 kilometres at the point of impact.
On Sunday 6 March 2016, you attended at the Forest Hill police station. You were arrested and participated in a record of interview. You denied fishtailing at Blackburn Road and Doncaster Road. You claimed the collision happened when you had been changing gears and that you hit a wet patch or something.

DPP v Papachristodoulou [2017] VCC 216 | Case summary | Zoe

On 31 October 2015, you were driving your father's Holden ute in Doncaster Road when you were involved in a motor car collision. As a result of excessive speed and fishtailing, your vehicle collided with another vehicle driven by Jason Huang. Both Mr Huang and his wife Ching Ru Chao, who was a passenger in the other vehicle suffered serious injury due to your negligent driving. At the time of the collision, the road was wet but it was not raining and the traffic flow was moderate.
The prosecution case is that prior to the collision in Doncaster Road, you were driving south on Blackburn Road where you deliberately caused the back end of your Holden ute to drift from side to side and fishtail, causing the tyres to spin on the surface of the road as you did so. At the time you were in the left hand lane of the two southbound lanes. The small swings would cause the back end of the Holden ute to cross the boundary line of that lane. The swings were small and largely controlled and after each one, you straightened the vehicle.
The prosecution relied on the evidence of an independent witness, Anthony McDonald, who gave evidence that when he was travelling behind you in Blackburn Road, he observed your vehicle fishtailing like this on three occasions. Mr McDonald described your vehicle as drifting from side to side and swinging out of its lane. He said he had his window down slightly and he could hear the wheels of your vehicle spinning and the engine revving. There were no vehicles between his vehicle and yours.
The first occasion he observed your vehicle fishtailing on Blackburn Road was near to Canopus Drive when he was approximately a hundred to a couple of a hundred metres behind you. The second occasion was near to Nonda Avenue and third occasion was just before Leura Street. On these occasions, Mr McDonald was approximately 80 to 100 metres behind you.
When he was cross-examined, Mr McDonald denied that there were any cars between your vehicle and his vehicle and he denied that he had been too far away to observe it fishtailing. Mr McDonald also denied that he was confused and had mixed up his observations of your vehicle fishtailing at Blackburn Road with the later incidents of fishtailing in Doncaster Road.
You denied fishtailing when you were travelling south on Blackburn Road. You relied on the evidence of your passenger, Bobby Michalopoulos, who in examination-in-chief denied that any fishtailing took place on Blackburn Road. However, Bobby also said that he was on his mobile phone and not paying attention to the road. Also when he was cross-examined as to whether any fishtailing took place in Blackburn Road, he said he could not remember it taking place.
I am satisfied beyond reasonable doubt that you caused your vehicle to fishtail on three separate occasions when you were driving south on Blackburn Road. I accept the evidence of Mr McDonald who was a straightforward and convincing witness. I accept his evidence that there were no cars between your respective vehicles and that he was close enough to observe the actions of your vehicle. In addition, I accept that his window was a bit open and he could hear the sound of your vehicle's wheels spinning and the sound of your exhaust. In accepting Mr McDonald's evidence, I have taken into account that he is an independent witness and that on returning home after the collision, he took notes of his observations of your driving on that day.
With respect to the evidence of Bobby Michalopoulos, he was not helpful to your case. He gave evidence that he was a long-time friend of yours and that you grew up together. At worst, I suspect that his friendship has affected his memory with respect to your driving on Blackburn Road on the day of the collision. At best, I suspect that he was concentrating on his mobile phone and he simply does not remember accurately.
Moving on to what happened on Doncaster Road, the prosecution case is that Doncaster Road has three lanes in each direction. You turned left and drove east in the middle lane and again deliberately fishtailed the vehicle as you drove towards the crest of the hill. The back end of the vehicle swung out across all three lanes. You performed five more swings as you approached the crest. Each swing put your vehicle on a 45 degree angle to the direction you were travelling in. You revved the engine on each swing to control the vehicle.
However as a result of fishtailing over the crest, you lost control of the vehicle. The vehicle slid across the eastbound lanes over the median strip and into the closest westbound lane directly into the path of the vehicle driven by Mr Huang. The front passenger side of the Holden ute struck the front driver side of Mr Huang's vehicle with the force of the impact pushing it backwards and causing the significant damage to both vehicles. A third vehicle lightly collided with the back of Mr Huang's vehicle, however it caused minimal damage and the driver was uninjured.
Bystanders assisted in removing Mr Huang and his wife from their vehicle and you and your passenger also provided assistance. Investigations carried out after the collision revealed that 2.5 seconds before the impact, the Holden ute was travelling at 105 kilometres per hour. The applicable speed limit was 70 kilometres per hour. You had applied the brakes in an attempt to stop the vehicle which skidded for at least 22 metres, reducing the speed of the vehicle to 59 kilometres at the point of impact.
On Sunday 6 March 2016, you attended at the Forest Hill police station. You were arrested and participated in a record of interview. You denied fishtailing at Blackburn Road and Doncaster Road. You claimed the collision happened when you had been changing gears and that you hit a wet patch or something.

[5]

Your personal circumstances were contained in a report from Pamela Matthews dated 9 October 2016. You were born on 28 January 1991 and grew up in Donvale. Your father does labouring work on commercial building sites and until recently your mother worked part-time in retail. You have two sisters. You had a happy childhood and there was no developmental exposure to domestic violence or substance abuse or child abuse. There were no behavioural issues at school. You left at the end of Year 10 to begin a plumbing apprenticeship. You successfully completed this apprenticeship and added roof plumbing as an additional qualification. You have been employed with Acrobat Roofing for the last nine years and you have also started your own plumbing business working at the weekends.
With respect to your driving record, you have one traffic infringement notice in 2009 for exceeding the speed limit by 45 kilometres or more for which your licence was suspended for 12 months. Other than this, you have no prior criminal record. You do not use illicit drugs. You rarely drink alcohol, only for special birthdays. You have no history of mental health issues. However Ms Matthews assessed you as currently suffering from low-level post-traumatic symptomology in relation to the collision and the consequence of your behaviour.
Given your background and history of stable work since leaving school, it was not surprising that Ms Matthews reported that you did not present with any serious personality, behaviour or social issues and that your risk of reoffending was very low. In her opinion, the factor contributing most to your offending behaviour was your youth. In this respect, she reported that "adolescent stage of development does not end at 18 years but rather developmental brain research would indicate that this stage extends into the mid-20s. While you are now 25, you remain in the late stage of adolescence as you have yet to achieve emotional independence from family and yet to achieve the developmentals of a stable, mature psychosexual relationship."
Ms Matthews reported that you accepted responsibility for the collision and the effect on the occupants of the other car. With respect to a sentencing disposition, she was of the view that a period of imprisonment without the support of your family was likely to send you into a downward spiral and that your current symptoms of post-traumatic stress disorder were likely to worsen. She considered that your time in custody would be more onerous for you because of this and that in addition, your youth and lack of world experience would make you socially and emotionally more vulnerable. From a rehabilitative perspective, she considered that a community corrections order was an appropriate disposition.

[6]

In his plea on your behalf, your counsel informed the court that you accepted responsibility for the collision and the injuries caused to the occupants of the other car. He said that you'd been overwhelmed with remorse for causing the collision and the injuries to the occupants of the other car. He said that after the collision you immediately assisted them and accompanied them until the ambulance arrived. He said that the collision caused you to feel pain for several months and to urinate blood. It was submitted that you had been negligent to a high degree but that your offending was not at the top end for negligently causing injury by driving. This was because it had not involved drugs and alcohol, and also that while Mr Huang and his wife suffered serious injury, their injuries were not in the worst category.
In submitting that a community corrections order was within range your counsel relied upon the following matters:
- you had pleaded guilty at the earliest opportunity and expressed genuine remorse;
- you were a relatively young offender, being 24 at the time of the offending;
- you were otherwise of good character with a history of stable and consistent employment; and
- you had a supportive family and you have completed a defensive driving course. Your prospects of rehabilitation were excellent.
With respect to your previous good character, your counsel tendered a character reference from your boss, Peter Argyrou, who had known you for nine years. In his reference he described you as being reliable and professional, with an ethical attitude towards work and clients. Most importantly, he said that you had expressed remorse for your thoughtless and immature behaviour. There was also a character reference from Paul Seymour who had known you for approximately ten years, and Adam Fiore who has known you for quite a few years. Mr Seymour described your offending as uncharacteristic. He said you had always demonstrated an extremely high degree of loyalty and respect for your family, peers and the community in general. You expressed intense regret and embarrassment for your offending. Mr Feuer also said that you had shown great remorse for your actions.
In a letter to the court, you said:

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