Priovolidis v R

Court of Criminal Appeal (NSW)|2016-09-05|Before: Gleeson JA, Price J, Hidden AJ

Solicitors: Legal Aid NSW (Applicant) Solicitor for the Director of Public Prosecutions (Respondent) File Number(s): 2013/254594 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 09 June 2015 Before: Conlon DCJ File Number(s): 2013/254594

Judgment

GLEESON JA: The applicant, Spiros (Ross) Priovolidis, seeks leave to appeal against sentences imposed upon him in the District Court by Conlon DCJ on 9 June 2015.
The applicant had earlier pleaded guilty in the Campbelltown Local Court to two driving offences. The first was the offence of failing to stop when the applicant knew or reasonably should have known the police were in pursuit and driving in a manner dangerous to others (police pursuit) contrary to s 51B(1) of the Crimes Act 1900 (NSW) (Crimes Act). The maximum penalty for this offence is five years' imprisonment. The details of the offence charged under s 51B(1) were that the applicant: …. on 21 August 2013 at Campbelltown and other places in the State of New South Wales did drive a vehicle, … knowing that police officers were in pursuit of the said vehicle and that he was required to stop the vehicle and did not stop the vehicle and then drove the said vehicle in a manner dangerous to others. [Emphasis added].

Relevant legislation

Section 51B of the Crimes Act provides: 51B Police pursuits (1) The driver of a vehicle: (a) who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and (b) who does not stop the vehicle, and (c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others, is guilty of an offence. Maximum penalty: (a) in the case of a first offence-imprisonment for 3 years, or (b) in the case of an offence on a second or subsequent occasion-imprisonment for 5 years. (2) In this section, "vehicle" has the same meaning as it has in section 52A.
Section 52A(4) of the Crimes Act provides: (4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.
The expression "circumstances of aggravation" is relevantly defined in s 52A(7) as including: (7) Circumstances of aggravation In this section, "circumstances of aggravation" means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) … (b) … (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) …

Circumstances of the offences

The sentencing judge proceeded on the basis of the Crown's statement of facts which had been agreed by the parties. The following summary is taken from his Honour's findings on sentence, which were not challenged on appeal.
The applicant was disqualified from driving on 5 January 1996. Between October 1996 and November 2012 he was convicted of numerous offences of drive whilst disqualified and other speeding and reckless or dangerous driving offences. The cumulative effect of those sentences is that the applicant will remain disqualified for 2 years from 14 December 2080.
On 21 August 2013 at about 10.42am, police in an unmarked highway patrol vehicle observed the applicant driving a green Ford XR8 sedan in Railway Street, Campbelltown. This vehicle had been stolen a year earlier. It also bore license plates that belonged to another Ford Falcon.
The applicant failed to give way to a female pedestrian at a designated pedestrian crossing on Railway Street. The pedestrian took evasive action. Police activated their lights and warning systems and followed the applicant, who proceeded through a red traffic signal at an intersection in Dumaresq Street. The police initiated a pursuit. A pedestrian attempting to cross the road was forced to stop in the middle of the road. The applicant proceeded through another red traffic signal at the intersection of Dumaresq Street and the Moore-Oxley Bypass. At the intersection of the Moore-Oxley Bypass and Cordeaux Street, Campbelltown, the applicant proceeded through a third red traffic signal by making a right hand turn in circumstances where a truck and bus were obstructing the view from the left. Police terminated the pursuit due to the danger being posed to other road users.
The pursuit recommenced a short time later on the Moore-Oxley Bypass where the applicant's vehicle was travelling at an estimated speed of 160 kph in a signposted 60 kph speed zone. At 10.44am, the police finally terminated the pursuit due to the high volume of traffic and danger to other road users.
The conduct described above was identified in the agreed Crown Facts as the conduct the subject of the police pursuit offence.
At 10.45am, a second police vehicle (fully marked as a Highway Patrol vehicle) which was stationary at the intersection of Blaxland and Campbelltown Road, Campbelltown, observed the applicant's vehicle travelling north through the intersection on Campbelltown Road at an estimated speed of between 80 kph per hour and 110 kph. The police activated all warning signs and attempted to stop the applicant's vehicle. The applicant failed to stop and the police commenced pursuit. The applicant's vehicle was travelling at an estimated speed of 100 kph in a 70 kph zone. The police terminated the pursuit due to the danger being posed to the public.
A short time later, that police car observed the applicant's vehicle travelling on the intersection of Eagle Vale Drive and Raby Road intersection, controlled by a roundabout. The applicant turned north onto Spitfire Drive, Raby and the police re-engaged pursuit. The applicant was observed travelling at an estimated speed of 120 kph in a 60 kph speed limit zone overtaking a single vehicle on the incorrect side of the road. A little later, the applicant's vehicle was observed travelling south along Campbelltown Road, Minto before it crossed onto the incorrect side of the road at the commencement of the concrete median barrier that separated north and south bound lanes. The applicant ignored a 'Keep Left' sign at the commencement of the concrete median strip. At 10.49am, police terminated the pursuit and pulled over to the nearside breakdown lane.
The applicant's vehicle was observed to continue along Campbelltown Road, travelling south in the northbound lane (the incorrect side of the road), weaving in and out of oncoming traffic until colliding with an oncoming vehicle driven by a 72 year-old man. The impact occurred well within the victim's lane. Both vehicles sustained extensive damage. Police who were situated approximately 400 metres away observed the victim's vehicle become airborne, and estimated that the applicant's vehicle was travelling at a speed of no less than 80 kph in a 70 kph speed limit zone.
The conduct described above was identified in the agreed Crown Facts as the conduct the subject of the aggravated dangerous driving offence.
When police spoke with the applicant at Macquarie Fields' police station he said: "It would never have happened if you'd left me alone and not chased me". The applicant subsequently declined to be interviewed.
The victim of the motor accident was taken to Liverpool Hospital suffering from a number of injuries including to his right shoulder and left anterior chest wall; displaced fracture of the right clavicle; blood in the right chest cavity; fractured sternum; lamina fractures of the third to fifth cervical vertebrae (broken neck bones); shallow right sided subdural haematoma over the right tentorium (intracranial bleeds); multiple rib fractures; fracture of the first lumbar vertical body (back bone fracture).
The victim remained at Liverpool Hospital until he was discharged on 17 October 2013. Whilst in hospital the victim developed an acute embolic stroke that resulted in right sided hemiparesis (weakness with speech and swallowing deficiencies) which soon resolved although he suffered ongoing cognitive deficiencies.

Proceedings on sentence

The proceedings on sentence commenced on 2 April 2015, were stood over, part-heard, to 13 May 2015 and due to the unavailability of documents on that date from Justice Health, stood over further to 9 June 2015. The applicant gave evidence in his case particularly directed to his medical condition, including ongoing eye problems. The Crown bundle (Exhibit A) included the agreed Crown Facts which, as indicated above, distinguished between the applicant's two periods of conduct the subject of the police pursuit offence and the subject of the aggravated dangerous driving offence.
The Crown provided detailed written submissions on sentence. Attention was drawn to the principle of totality and the need for careful consideration whenever sentences are accumulated. The Crown submitted that the totality principle was not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences. The Crown further submitted that the sentencing judge should look at each offence individually then take into account totality and accumulation. The Crown submission continued: It is submitted that in order to reflect the objective seriousness of each of the offences and give appropriate punishment for each, your Honour should at least partially accumulate the sentences.

The judge's reasons

After summarising the agreed facts, his Honour made the following findings. Dealing with the offence of police pursuit, the judge found that the objective gravity of the offending fell towards the top end of the range. His Honour took into account that there was "the extreme potential for danger to other users of the roadway" and in this regard also referred to the applicant's: final desperate act of trying to evade the police by crossing onto the incorrect side of the concrete median barrier and weaving in and out of the oncoming traffic would have been a terrifying experience for other motorists.
Next, after referring to R v Whyte (2002) 55 NSWLR 252, the guideline judgment for dealing with the offence of aggravated dangerous driving, and subsequent authorities, the judge found that the applicant "clearly abandoned his responsibility to other users of the roadway" and that his "moral culpability is high". It is convenient to set out the following passage from his Honour's remarks on sentence in full: Of course the aggravated form of the offence arises from the fact that the offender was attempting to escape police at the time of the dangerous driving resulting in impact and grievous bodily harm. Whilst the Court is called upon to deal with the offender for the police pursuit charge the Court can have regard to aspects of his manner of driving leading to the collision and resulting injury. His driving was both erratic and aggressive and involved speeds well in excess of the applicable speed limit. He ignored the police warnings to stop. He ignored the keep left sign at the commencement of the median barrier. He took his car onto the incorrect side of the road into the path of oncoming vehicles, accordingly numerous other drivers were put at risk.
The judge then summarised the applicant's subjective case, including that the applicant was aged 45 years at the time of sentence, and his criminal history, including numerous convictions for driving whilst disqualified and related driving offences, and considered it such that he would not be entitled to any leniency. Having regard to the applicant's ongoing eye problem, the judge found that the applicant's time in custody would be much more difficult than it is for other prisoners. His Honour accepted that the applicant was genuinely remorseful.
The judge expressed his satisfaction, given the objective seriousness of the offences, that no penalty other than imprisonment was appropriate: Sentencing Act, s 5. The judge also expressed the view that at least a partial accumulation in respect of the two sentences should be imposed.
The judge found special circumstances (under s 44 of the Sentencing Act) to support a variation of the statutory ratio of the non-parole period to the overall term on two bases: one that there should be, at least, a partial accumulation in respect of the two sentences to be imposed; the other being that the applicant's time in custody would be much more difficult due to his ongoing eye problem.
After allowing for a 25 per cent discount for the early plea of guilty in the Local Court, his Honour imposed the sentences indicated.

Ground 1: His Honour erred by imposing double punishment upon the applicant

Applicant's submissions

In writing, the applicant referred to the common element principle identified in Pearce v R (1998) 194 CLR 610; [1998] HCA 57 (Pearce) at [40] and submitted that the overlapping elements between the two offences under ss 51B and 52A(4) meant that the sentences imposed on the applicant involved double punishment as described in Pearce. It was submitted that both offences were committed whilst in control of a motor vehicle, the elements in common being (a) escaping police pursuit; and (b) driving in a manner dangerous to other persons. The unstated premise of this submission regarding double punishment was that a single act by the applicant was the basis of both offences.
In oral argument, senior counsel for the applicant submitted that the issue in the present case is of quite short compass. Counsel submitted that separation of the applicant's driving into discrete aspects is an artificial construction of the circumstances, especially given that the total time involved was under 10 minutes. It was emphasised that the sentencing judge dealt with the facts of the offending on a global basis and did not make the distinction now drawn by the Crown in its submissions in this Court between the separate and distinct conduct giving rise to the two offences.
As to the applicant's failure to raise the double punishment issue before the sentencing judge, senior counsel for the applicant (who did not appear at the sentencing hearing) submitted that where a matter "may have been overlooked by the defence and the sentencing judge", this Court may intervene to correct a miscarriage of justice or serious injustice, and relied on Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 (Zreika) at [82] (Johnson J, McClellan CJ at CL agreeing) and White v R [2016] NSWCCA 190 at [28] (Simpson J, Bathurst CJ agreeing).

Crown submissions

The Crown's submissions took a different approach. No submissions were directed to the question of whether there were common elements between the police pursuit offence and the aggravated dangerous driving offence. The Crown's submissions focused on the question of whether the two offences were based on different conduct such that the common element principle in Pearce did not apply.
In support of this submission the Crown identified four aspects of the applicant's driving on 21 August 2013, which the Crown submitted should be divided into two different parts. The first part involved the pursuit by an unmarked police highway patrol vehicle which commenced at 10.42am in Railway Street, Campbelltown up to the point where the police finally terminated that pursuit on the Oxley-Moore Bypass at 10.44am. The Crown submitted that this aspect of the applicant's driving satisfied the offence of police pursuit contrary to s 51B(1).
The second part involved the pursuit by a marked police highway patrol vehicle which commenced at 10.45am on Campbelltown Road, travelled through the suburbs of Raby (and it seems St Andrews) before turning back in the direction of Campbelltown via Campbelltown Road at Minto when the police stopped the pursuit at 10.49am and shortly thereafter the applicant's vehicle collided with an oncoming vehicle, injuring its driver. The Crown submitted that this aspect of the applicant's driving related to the more serious offence of aggravated dangerous driving contrary to s 52A(4).
The Crown submitted that the criminality for the earlier driving conduct is distinct and separate to the criminality of the later conduct, because that earlier criminality was separate, there being a temporal disconnect between the two sets of offending.

(a) The common element principle

The common element principle identified in Pearce was reiterated in Johnson v R (2004) 205 ALR 346; [2004] HCA 15 (Johnson v R) at [33] - [34] where the plurality (Gummow, Callinan and Heydon JJ) emphasised that it is an error of principle to punish an offender twice for the commission of elements that are common to the offences of which he or she has been convicted.
The premise of the common element principle is that the offender is being sentenced for two or more charges which arise out the same circumstances, or, as stated in Pearce (at [3]), the "two charges arose out of a single episode".
In Pearce, the offender broke into the victim's home and beat him. Sentences had been imposed for numerous offences including counts 9 and 10, maliciously inflicting grievous bodily harm with intent contrary to s 33 of the Crimes Act, and breaking and entering a dwelling house and inflicting grievous bodily harm in the dwelling contrary to s 110 of the Crimes Act. In each case the victim, and the grievous bodily harm inflicted on him, was the same. The offender was sentenced to imprisonment for 12 years with a minimum term of 8 years on each of counts 9 and 10, to be served concurrently, but cumulatively upon a sentence for another offence. The High Court held that the sentence imposed on each offence fully punished the appellant for his infliction of grievous bodily harm on the victim. Accordingly, the offender was prima facie punished twice for that common element notwithstanding that the sentences for two offences had been ordered to be served concurrently: at [40] - [43] (McHugh, Hayne and Callinan JJ; Gummow J agreeing at [69], contra Kirby J at [132]).
The plurality (McHugh, Hayne and Callinan JJ) in Pearce stated the common element principle as follows (at [40]): [40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.
Their Honours continued (at [42] - [43]): [42] It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a matter of semantics. [43] The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
The plurality then considered whether the prima facie conclusion that the appellant had been doubly punished was avoided by the sentencing judge making the sentences wholly concurrent before concluding it was not. The plurality held (at [45]) that a sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as, of course, questions of totality. The plurality continued (at [49]): [49] Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. (emphasis added).
The relevant principle to be derived from Pearce is that where an offender is convicted of offences arising from the same set of facts which have elements in common, the court should not sentence twice for the elements of the offences which are in common.
In Pearce, it was the single act of inflicting grievous bodily harm for which the offender was doubly punished.
In Johnson v R, the offender had pleaded guilty to one count of attempting to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 (Cth) (Customs Act) applied, namely a quantity of ecstasy, and a second count of attempting to obtain possession of prohibited imports to which s 233B of the Customs Act also applied, namely a quantity of cocaine. The two offences arose from one transaction. In the High Court, the plurality held (at [33]) that the two offences "had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant." The plurality observed (at [30]) that the West Australian Court of Criminal Appeal had erroneously found that the offender took possession of two separate parcels of two separate drugs and that this error seems to have influenced the Court of Criminal Appeal in treating the offences as entirely separate, and in holding that there was no common element. The plurality stated (at [34]) that "[f]acts either lend themselves to the application of a particular principle or not."
In view of the conclusion I have reached below in relation to the proposed ground of appeal, it is unnecessary to consider the proper approach to sentencing when the offences arising from the same set of facts have elements in common: see the discussion in Portolesi v R [2012] NSWCCA 157 at [45] - [46] (Beech-Jones J, Basten JA and Harrison J agreeing).

(b) The common element principle had no application on the facts in the present case

It may be accepted for the purposes of argument (no submission to the contrary having been advanced by the Crown) that the elements of dangerous driving and police pursuit are common to both the offence under s 51B(1) and the aggravated form of the dangerous driving offence under s 52A(4). However, the existence of overlapping elements between the two offences does not in and of itself engage the double punishment principle described in Pearce. A closer examination of the facts is required.
In considering the two offences' underlying facts, the critical issue is whether the applicant's driving on 21 August 2015 is, properly viewed, a single act or episode (as the applicant contended) or two separate and discrete acts giving rise to two separate offences (as the Crown contended).
The starting point is the details of the conduct relied upon for each offence charged, which were different notwithstanding that they involved the driving of the same vehicle on the same day. The police pursuit offence was alleged to have been committed in a different suburb, namely "at Campbelltown and other places". The aggravated dangerous driving offence was alleged to have been committed "at St Andrews and other places". Location was thus an obvious differentiator between the respective charges.
Next, the agreed statement of facts makes it abundantly clear that the two offences were separated in time and place, albeit that the temporal gap between the two offences was only very short. The conduct relied upon for the police pursuit offence was different from the conduct comprising the aggravated dangerous driving offence, the former offence being completed when the unmarked highway patrol vehicle terminated the pursuit on the Oxley-Moore Bypass at 10.45am, with the latter offence commencing with a pursuit by a second (marked) highway patrol vehicle at about 10.46am and concluding at about 10.49am when the applicant's vehicle collided with an oncoming car on Campbelltown Road, Minto.
In this case, the conduct relied upon as constituting the offences was separate and distinct. Although close in time and occurring in adjoining or nearby suburbs, this is not a case like Pearce where the two charges arose out of a single episode (the appellant having broken into the victim's home and beaten him) or Johnson v R (where the two charges arose out of possession of one package of drugs). Both the terms of the charges and the agreed statement of facts support the Crown's identification, in the applicant's driving, of separate and discrete sets of conduct the subject of the two offences.
That the sentencing judge treated the two offences as arising from separate and distinct conduct may be seen from his remarks on sentence. In his summary of the agreed facts, the judge noted the differences between the two highway patrol vehicles involved in the two pursuits. He also noted the different localities and the different times at which the two offences were committed. In accepting the Crown's submission that there should be at least some accumulation of the sentences imposed, the judge may be taken to have had proper regard to the totality principle (Postiglione v The Queen (1997) 189 CLR 295, 304 (Dawson and Gaudron JJ); 307 - 309 (McHugh J); 335 - 339 (Kirby J)) including the objective seriousness of each offence. This does not mean that his Honour treated the two offences as a single episode or incident.
Further, it is apparent from the judge's remarks on sentence (set out at [28] above) when dealing with the aggravated dangerous driving offence, that his Honour was careful to distinguish between the applicant's separate conduct the subject of the police pursuit offence, and the regard which could be had "to aspects of the [applicant's] driving leading to the collision and resulting injury". The aspects of the applicant's driving involving police pursuit which his Honour identified may be taken to refer to the applicant's conduct during the police pursuit by the second police highway patrol vehicle from 10.46 am to 10.49 am through the suburbs of Raby, St Andrews and Minto, leading to the collision at Campbelltown Road, Minto.
It can be accepted that in an earlier part of the remarks on sentence when describing the "extreme potential for danger to other users of the roadway" the judge went on to refer, in the context of the charge of police pursuit, to the applicant's "final desperate act of trying to evade the police by crossing onto the incorrect side of the concrete median barrier and weaving in and out of the oncoming traffic would have been terrifying experience for other motorists". This can be taken to be a reference to a subsequent aspect of the applicant's driving involving the aggravated dangerous driving offence. As the applicant submitted, the judge at this point was dealing with the facts globally. Nonetheless, the distinction between the conduct involved in the police pursuit offence, and the subsequent conduct involved in the aggravated dangerous driving offence is implicit, arising from the judge's preceding remarks as well as those made later when dealing with the aggravated dangerous driving offence.
His Honour's remarks should not be read as an acceptance that the two offences were derived from a single episode or incident. There was no occasion for his Honour to consider the question of double punishment on the facts of the offending in this case.
In my view, the error asserted in proposed ground 1 of the notice of appeal has not been made out.
Having regard to the above conclusion, it is unnecessary to decide whether the applicant is precluded from raising the double punishment issue in this Court, not having raised the issue at the sentencing proceedings. On the view of the circumstances of the offending which I take, it is unsurprising that it was not raised before the sentencing judge; contrary to the applicant's submissions in this Court, the sentencing judge was not dealing with two offences arising out of a single episode or incident but rather two separate and discrete sets of conduct.
Nevertheless, if it were necessary to decide, I would accept the applicant's submission that the principle of double punishment is so fundamental that the failure by the applicant and the Crown to raise it before the sentencing judge would necessarily lead to error for the reasons given in Pearce, and that Zreika would not preclude the applicant raising the matter on appeal.

Conclusion and orders

In my view, whilst leave to appeal against sentence should be granted, the appeal should be dismissed.
PRICE J: I agree with Gleeson JA.
HIDDEN AJ: I agree with Gleeson JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2016

Crimes Act 1900(NSW)ss 33, 51B, s

Customs Act 1901(Cth)s 233B

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