Papagelou v The Queen [2022] VSCA 53

1 A little before 9.00 pm on Sunday, 18 November 2018, a vehicle driven by the appellant struck a pedestrian, Henry Ekselman, causing him injuries from which he later died.

2 Subsequently, on 25 March 2021, the appellant pleaded guilty in the County Court to a single charge of dangerous driving causing death.[1]

3 Following a plea in mitigation conducted on 25 March 2021, the judge sentenced the appellant on 12 April 2021 to four years' imprisonment, and fixed a non-parole period of two years.[2] Further, the appellant's driver's licence was cancelled and he was disqualified for 19 months.[3]

4 Pursuant to leave granted on 18 October 2021,[4] the appellant brings this appeal contending that the sentence is manifestly excessive.

5 For the reasons that follow, we would allow the appeal and resentence the appellant to three years' imprisonment, upon which we would fix a non-parole period of 18 months.

6 For the sake of convenience, we adopt the description of the appellant's offending in the Leave Reasons:

[6] Shortly after 5.15 pm, on Sunday, 18 November 2018, the [appellant] went to the Prince Alfred Hotel in Church Street, Richmond, with his wife, Marina Giosmas, and friends Christopher Kalogiannis, Jessica Hadjifotis, Bianca Ioannou and Leila Avini. He drank three 'shots' of spirits and three mixed drinks over two and a half hours. At 7.57 pm, the [appellant] and his friends walked to a nearby restaurant for dinner. They ate pizzas and shared a bottle of wine.

[7] At 8.42 pm, the [appellant] left the restaurant to collect his car and returned a few minutes later. Ms Avini got into the front passenger seat and told the [appellant] he should not be driving because he had been drinking. Feeling unsafe, she tried to get out of the car, but the [appellant] held her forearm and inched his car forward, forcing her to close the car door. The [appellant] then drove south along Church Street with Ms Avini in the front seat and Ms Giosmas and Ms Ioannou in the rear seats. Mr Kalogiannis was driving another vehicle.

[8] At the intersection of Alexandra Avenue, the [appellant] stopped in the right-hand lane facing a red traffic light. Mr Kalogiannis pulled up alongside the [appellant] and drove off when the lights turned green. The [appellant] was delayed behind other traffic and unable to move through the intersection on the same cycle. When the lights turned green, the [appellant] accelerated to catch up with Mr Kalogiannis' vehicle. Closed circuit television footage showed the [appellant's] vehicle trying to catch up to Mr Kalogiannis' car as they drove along Chapel Street.[5]

[9] As the [appellant] approached the intersection of Chapel Street and Daly Street, Mr Kalogiannis entered the intersection just as the traffic signal was turning amber. At the same time, Mr Ekselman had commenced crossing Chapel Street from west to east whilst the pedestrian light was red. Yuchuan Huang was driving behind Mr Kalogiannis. He began to slow down because the lights were changing and Mr Ekselman was crossing the road ahead.

[10] The [appellant's] car was behind Mr Huang's vehicle. Instead of slowing down, the [appellant] drove to the left side of the road and accelerated past and around Mr Huang's vehicle and into the intersection, just as the traffic signal was changing from amber to red. Seeing Mr Ekselman, the [appellant] steered to the right in an attempt to avoid hitting him but was unable to do so. The front left area of the [appellant's] car hit Mr Ekselman, propelling him 15 metres forward, knocking him unconscious and causing him to be fatally injured. Mr Ekselman had pushed the pedestrian demand button on the north western side of Chapel Street, but had commenced to cross Chapel Street prior to the pedestrian light turning to green, being struck by the [appellant's] vehicle when the pedestrian light was still red.

[11] An accident reconstructionist estimated the speed of the [appellant's] vehicle at the point of collision to have been between 36 and 53 kilometres per hour, but most likely between 43 and 52 kilometres per hour.

[12] The [appellant] pulled over 74 metres further down Chapel Street, outside The Como Melbourne hotel. The [appellant] then opened the driver's door and got out.

[13] At 9.00 pm, Senior Constable Brian West attended the collision scene and conducted a preliminary breath test on the [appellant] which established that the [appellant] had a blood alcohol concentration of no less than .0744 grams of alcohol (although the prosecution relied on a blood alcohol concentration of .075).[6] At 9.20 pm, the [appellant] was arrested. He was taken to the Alfred Hospital. At 10.25 pm, a blood sample was obtained. Upon analysis, it was found to have a concentration of .130. A second blood sample was taken from the [appellant] at 11.00 pm. The blood alcohol concentration was .104.

[14] Mr Ekselman died at 10.04 pm.

[15] At 1.07 am, the [appellant] was taken to the Prahran Police Station where he gave a 'no comment' interview.

[16] Dr Angela Sungaila, a forensic physician from the Victorian Institute of Forensic Medicine, offered the following opinion:[7]

If the PBT [preliminary breath test] is taken to be the most accurate representation of his blood alcohol at the time of the collision, then the residual unabsorbed alcohol in his stomach would have been approximately 3-5 standard drinks. A blood alcohol level of 0.075% can cause a number of impairments. Those specifically not subject to tolerance are disinhibition and divided attention. These impairments would have been present to a greater or lesser extent in this case as well as others determined to exist at low to moderate blood alcohol levels. I am unable to say whether the extent of impairment would have been sufficient to prevent [the appellant's] proper control of his motor vehicle so as to cause the collision.

The relevance of alcohol consumption to the appellant's driving

7 In order to determine whether the ground of appeal has substance, it is necessary to make some assessment of the seriousness of the appellant's offending.

8 Significantly, in submissions made to the sentencing judge, the prosecutor contended that the present case was a 'lower end' example of the offence of dangerous driving causing death (albeit not the 'lowest'). The respondent's counsel in this Court did not resile from that position.

9 When asked by the judge on the plea to 'outline ... exactly what it is the prosecution says constitutes the dangerousness in this case', the prosecutor said the 'dangerousness' was '[o]vertaking on the left of the stationary vehicle while driving through the amber turning red light'. She added that the prosecution did not allege that alcohol consumption was 'a cause of the collision', but was relevant to the appellant's 'disinhibition and divided attention'.

10 Counsel for the appellant on the plea accepted that the appellant's alcohol consumption was relevant in that, 'when you view what occurred, ... it would be rational to consider that at least an element of disinhibition was present in the decision-making process'. There was 'no doubt', counsel accepted, that alcohol consumption was something that the judge had to have regard to in assessing the gravity of the appellant's offence, it being 'part and parcel of how he came to make the decision'. In written submissions, counsel had earlier contended that 'whilst alcohol does not play a causal role here, it played a part in [the appellant] adopting a poor mode of driving'.

11 Following the plea, at the judge's invitation, counsel provided further written submissions. In her submissions, the prosecutor argued that the appellant's moral culpability fell at the 'higher end'. She contended that the present case was not an example of momentary inattention. The appellant drove through an amber light turning red, and manoeuvred his vehicle around Mr Huang's vehicle. And, while not a cause of the collision, the appellant had consumed alcohol during the evening 'which is a relevant broader consideration as it likely caused disinhibition and divided attention'.

12 In his further written submissions, the appellant's counsel conceded 'that this was not an example of momentary inattention', and that the 'dangerousness consisted in driving through an amber light and passing on the inside of Mr Huang's vehicle'. The fact that the appellant had consumed alcohol was 'a relevant contextual consideration as it likely caused disinhibition'. Counsel also submitted that the

presence of alcohol at the time of the collision cannot bear on the gravity of the offending by way of dangerous driving unless some causal connection could be positively established beyond reasonable doubt. In the absence of such, the alcohol could not be said to aggravate the conduct which caused the collision. It is respectfully submitted that based upon the expert evidence of Dr Sungaila, the Court could not make such a finding.

13 In his sentencing remarks, the judge set out his approach to the issue of the appellant's alcohol consumption:[8]

The dangerous driving relied on upon by the prosecution is said to be your decision to pass the vehicle of Mr Huang on the left and accelerate through a light which was amber, turning red. This piece of dangerous driving occurred against a context of you having consumed alcohol during an approximately three-hour period resulting in reading of 0.075 per cent. This is the reading on which the prosecution relies and upon which Dr Angela Sungalia the prosecution expert, a forensic physician, based her opinion. Dr Sungalia said that she was not able to say whether the extent of impairment from alcohol would have been sufficient to prevent your 'proper control' of the motor vehicle so as to cause the collision. I do note that intoxication whilst under the influence to such an extent as to be incapable of having proper control of a motor vehicle is the test for culpable driving. This is a case of dangerous driving.

However, Dr Sungaila also said that one of the ways in which alcohol negatively affects driving is by causing disinhibition. Here, in my opinion disinhibition was manifest at the critical time and in the lead up driving. During his sentencing submissions [defence counsel] accepted the role of alcohol in the offending saying that it is rational to consider that there was an element of disinhibition to the decision to drive in the way that you did. Disinhibition arising from the consumption of alcohol was 'part and parcel' of how you came to make the decision you made to pass on the left and accelerate through the intersection to catch up to your friend.

...

[Defence counsel] in his written submissions pointed out the evidence of Dr Sungaila that she could not say on the basis of your blood alcohol level that you were incapable of having proper control of your motor vehicle and therefore the presence of alcohol cannot be said to be causal and should not be considered an aggravating feature.

For the reasons I have outlined, I am satisfied beyond reasonable doubt that your alcohol consumption led to disinhibited driving and made a contribution to the dangerous driving in this case. As such it is relevant to the assessment of your moral culpability in this matter. Given you had been drinking alcohol over a few hours in quantities sufficient to produce a reading over the permissible blood alcohol content, it was incumbent on you not to drive. Indeed, you had a warning from your passenger Ms Avini not to drive which you failed to heed. You should not have been driving at all and these matters are relevant to your moral culpability. Of course, the case of Neethling[[9]] requires the sentencing judge to consider the extent of your intoxication and in that regard, I take into account the reading and Dr Sungaila's analysis and opinion as to its effect.

...

In this case disinhibited by alcohol you decided to drive and then deliberately engaged in a manoeuvre that left you no way to avoid the catastrophic collision that caused the death of Mr Ekselman. Your moral culpability for these actions is significant.

14 From these passages it seems plain that the judge approached the issue of the appellant's alcohol consumption in the manner he was invited to by both counsel: alcohol consumption had contributed to the appellant's driving because it had led to disinhibition. In that way, the appellant's alcohol consumption bore on his moral culpability. Plainly, it was open to find that the appellant's alcohol consumption 'led to disinhibited driving and made a contribution to the dangerous driving in this case', and, as such, was relevant to the assessment of the appellant's moral culpability. One might readily accept Dr Sungaila's opinion that, to 'a greater or lesser' extent, a driver with a blood alcohol concentration of .075 would be subject to the 'impairments' of 'disinhibition and divided attention'.

15 We consider that it was proper to approach this case on the basis that the disinhibition flowing from the appellant's alcohol consumption contributed to his decision to overtake a stationary vehicle when the traffic light was changing to red, that manoeuvre constituting the dangerous driving which caused Mr Ekselman's death.

16 In written and oral submissions, counsel for the appellant submitted that the appellant's offending fell towards the lower end of the spectrum of seriousness. The prosecution did not contend that the appellant entered the intersection against a red light or at excessive speed, and it was accepted that the appellant's blood alcohol concentration at the time of the fatal collision would have approximated .075 per cent, leading to some disinhibition.

17 Counsel submitted that the principles from Spanjol[10] were engaged, given that Mr Ekselman was crossing the intersection in disobedience of a red light. If Mr Ekselman had not been crossing against a red light, the fatal collision simply would not have occurred.

18 The appellant's plea of guilty, counsel submitted, had increased utilitarian value, given that it was entered during the COVID-19 pandemic.[11] It was accompanied by remorse - the judge accepted that the appellant had made a sincere and insightful apology to Mr Ekselman's family - and it spared Mr Ekselman's family and friends the trauma of a trial.

19 Furthermore, the psychological evidence demonstrated that the appellant exhibited ongoing suicidal ideation and self-loathing. He was suffering from Post-Traumatic Stress Disorder, a Major Depressive Disorder and an Anxiety Disorder. Imprisonment would have a significant adverse impact on his mental health.[12]

20 Importantly, the appellant was a person with no prior convictions, and who was able to rely on some fifty character references to establish his positive good character. He had excellent prospects of rehabilitation.

21 Finally, counsel submitted, there had been a delay of two and a half years between the appellant's offending and sentence. The delay had contributed to the appellant's psychological difficulties.[13]

22 The respondent's counsel submitted that the sentence of four years' imprisonment reflected the sentencing judge's findings that the objective dangerousness of the appellant's driving and his moral culpability were both significant. As to moral culpability, it was incumbent on the appellant not to drive with a blood alcohol concentration of .075 per cent, and, indeed, he had been warned by a friend not to drive. The manoeuvre performed by the appellant immediately prior to the collision was, counsel submitted, inherently dangerous, given that it must have been clear to him that the traffic lights had turned to amber and that the car travelling in front of him had slowed in response. Contrary to the submission advanced on behalf of the appellant, the fact that Mr Ekselman was crossing the road against a red pedestrian light did not require a meaningful reduction to the sentence. The judge was not bound to find that the offending was at the lower end of the spectrum. Finally, the respondent's counsel submitted, each of the matters in mitigation were given appropriate weight, as was the appellant's excellent prospects of rehabilitation.

23 In our opinion, there were a number of powerful mitigating factors which in combination should have led to a significant amelioration of sentence.

24 First, the appellant's plea of guilty was accompanied by 'profound and genuine' remorse, in circumstances in which the appellant had written a 'sincere and insightful' apology to the deceased's family. In a report received by the judge, Mr Luke Armstrong, consulting psychologist, spoke of the appellant's suicidal ideation, and stated that the appellant 'lives every day with a genuine level of self-loathing and self-hatred for the damage that he has brought about on the victim's family and his own loved ones'.

25 Secondly, and allied to the first matter, Mr Armstrong was of the view that the appellant suffers from a chronic form of Post-Traumatic Stress Disorder, and that a prison sentence would 'have a significantly adverse effect on [his] already precarious prognosis'. Hence, the principles set out in Verdins were engaged.[14]

26 Thirdly, the appellant is a man with no criminal or driving convictions, whose positive good character was attested to by the many character references provided, and whose prospects of rehabilitation the judge assessed as 'excellent'. Although, sadly, the offence of dangerous driving causing death is relatively frequently committed by people of otherwise good character, so much does not rob previous good character completely of relevance. Previous good character remains a factor which must be taken into account in mitigation of penalty.[15]

27 Fourthly, although the delay between offending and sentence in this case may be thought to be modest when compared to some other cases, the delay remained relevant. It bore on two of the matters already mentioned - both the psychological punishment inflicted upon the appellant whilst his sentence remained unresolved, and his rehabilitation in the meantime.

28 Fifthly, the appellant's plea of guilty had utilitarian value on at least two levels. Thus, it saved Mr Ekselman's family and friends from being subjected to a trial. Additionally, and very importantly, the plea was entered during the COVID-19 pandemic, thereby playing a part in diminishing the strain on this State's struggling system of criminal justice. As this Court has recently reaffirmed,[16] the statements in Worboyes[17] are not empty platitudes. All other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects, and ordinarily should attract a more pronounced amelioration of sentence than at another time. We find it difficult to see that the significant utilitarian value of the appellant's plea of guilty is adequately reflected in the sentence imposed, particularly when further regard is had to the appellant's profound remorse and Verdins considerations.

29 Finally, we have viewed the closed circuit television footage of the fatal collision more than once, and consider there to be force in the contention that, had Mr Ekselman not been walking across the crossing in disobedience of the red pedestrian light, the fatal collision would not have occurred. In that sense, Mr Ekselman's crossing against a red light - a matter outside the appellant's control - was a material cause of his fatal injuries.[18] We consider it to be likely that, as he approached the intersection, the appellant's view was obscured by Mr Huang's vehicle. Hence, when he manoeuvred to the left of Mr Huang's vehicle, he would not have anticipated the presence of Mr Ekselman in the intersection walking against the applicable traffic control signal. So much bears upon the appellant's moral culpability, and, in our view - as the prosecution accepted on the plea - puts the appellant's towards the lower end of the spectrum of seriousness of cases of dangerous driving causing death.

30 The principles that inform the resolution of a case such as the present were summarised in Leimonitis:[19]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[20] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[21] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[22] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[23]

31 Balancing, as best we are able, the circumstances of the offence and of the appellant, and the factors that aggravate and mitigate the offending, we have concluded that the sentence imposed at first instance is outside the range of sentences available to the sentencing judge in the sound exercise of the sentencing discretion.

32 For these reasons, we would allow the appeal and resentence the appellant to three years' imprisonment, upon which we would fix a non-parole period of 18 months. We would confirm all other orders made by the sentencing judge.

[1] Crimes Act 1958, s 319(1). The maximum penalty is 10 years' imprisonment.

[2] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have imposed a sentence of five years and six months' imprisonment with a non-parole period of three years and four months.

[3] Sentencing Act 1991, s 89(1).

[4] Papagelou v The Queen (Unreported, Court of Appeal, Priest JA, 18 October 2021) ('Leave Reasons').

[5] Church Street becomes Chapel Street on the south side of the Yarra River.

[6] It seems that there had been a calibration issue with the relevant preliminary breath testing device. Expert opinion was that the lowest possible reading for the sample taken from the appellant at the scene of the collision was .075.

[8] DPP v Papagelou [2021] VCC 411, [43]-[53] (Judge Doyle) (emphasis added).

[9] DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466 (Maxwell P, Vincent JA and Hargrave AJA).

[10] Spanjol v The Queen (2016) 55 VR 350, 361-2 [40]-[47] (Maxwell P, Redlich and McLeish JJA) ('Spanjol').

[11] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344 (Priest, Kaye and T Forrest JJA) ('Worboyes').

[12] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[13] R v Merrett [2007] VSCA 1; (2007) 14 VR 392.

[14] Verdins, 276 [32], especially propositions 5 and 6.

[15] See Ryan v The Queen (2001) 206 CLR 267, 275, [23]-[25] (McHugh J), 298 [103] (Kirby J), 319 [178] (Callinan J).

[16] Barnard (a pseudonym) v The Queen [2022] VSCA 42, [18] (Priest and T Forrest JA).

[17] Worboyes, 356-7 [35]-[39] (Priest, Kaye and T Forrest JJA).

[18] See Spanjol, 362 [48] (Maxwell P, Redlich and McLeish JJA); Guseli v The Queen (2018) 87 MVR 340, 350-3 [40]-[48] (Kyrou and Weinberg JJA and Taylor AJA); DPP v Currie [2021] VSCA 272, [180].

[19] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) (citations as in original).

[20] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v The Queen [2013] VSCA 4, [12]; Allen v The Queen (2013) 36 VR 565, 573 [51]-[52].

[21] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[23] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15].