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16
Court of Criminal Appeal 4 August 2005

REGINA v George TZANIS

[2005] NSWCCA 274

Traffic & driving
CRIMINAL LAW APPEAL SENTENCE S52A(3)(C) CRIMES ACT 1900 DANGEROUS DRIVING OCCASIONING DEATH AGGRAVATING FACTORS

Citation: Regina v George Tzanis [2005] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 4 August 2005
Judges: Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie J, Buddin J

Background

The appellant pleaded guilty in the District Court to dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, contrary to ss 52A(1)(c) and 52A(3)(c) of the Crimes Act 1900. The offences arose from a late-night collision on 14 February 2001, when the appellant drove whilst intoxicated (recording a blood alcohol reading of 0.135 g/100mL), at speed, and with his vehicle becoming airborne over a crest. Despite a passenger warning him earlier in the evening, he continued to drive erratically. The resulting high-speed collision with a power pole killed one passenger and caused grievous bodily harm to another.

The appellant left Australia for Greece after the incident, obtained Greek citizenship, and completed military service there. He voluntarily returned to Australia approximately two years later, knowing a custodial sentence was likely. The sentencing judge in the District Court imposed five years imprisonment with a non-parole period of three years for the death offence, and a concurrent fixed term of eighteen months for the grievous bodily harm offence.

On appeal, the appellant challenged both the application of statutory aggravating factors and the overall length of the principal sentence.

  • Whether the sentencing judge erred by applying s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (substantial injury or damage) as an aggravating factor, where harm is already an element of the offences charged.
  • Whether the sentencing judge erred by applying s 21A(2)(m) (multiple victims or a series of criminal acts) as an aggravating factor.
  • Whether the principal sentence of five years imprisonment was manifestly excessive having regard to all objective and subjective circumstances.

Decision

On the aggravating factor of substantial harm (s 21A(2)(g)): The Court accepted that using substantial harm as an aggravating factor was erroneous in these circumstances. Under s 21A(2), a court must not have additional regard to an aggravating factor that is already an element of the offence. Both ss 52A(1)(c) and 52A(3)(c) include the causing of death or grievous bodily harm as elements, meaning the sentencing judge should not have treated the harm caused as a further aggravating consideration.

On multiple victims (s 21A(2)(m)): The Court also found error in the application of this aggravating factor. Given that the appellant was sentenced for two discrete offences, each involving a separate victim, it was not appropriate to then treat the existence of multiple victims as an additional aggravating circumstance on top of the separate convictions.

On manifest excess: Notwithstanding the errors, the Court considered all relevant circumstances. Objective factors pointing to seriousness included driving whilst under suspension, intoxication at a significant level, driving at speed, and continuing to drive after a passenger's warning. The Court acknowledged these features as pointing firmly towards a substantial sentence. However, the subjective factors were significant: high prospects of rehabilitation, genuine contrition, the appellant's young age at the time of offending, an early guilty plea, and, most notably, his voluntary return to Australia in the knowledge that imprisonment was inevitable. Spigelman CJ described the voluntary return as a "highly unusual subjective circumstance," reflecting a preparedness to accept responsibility and a commitment to a law-abiding future.

The Court determined that some degree of cumulation between the two sentences was appropriate to reflect discrete punishment for each offence, but found the five-year head sentence excessive when all factors were properly weighed. The principal sentence was set aside and replaced with a reduced term.

Orders Made

  • Appeal allowed.
  • Sentence for the offence of dangerous driving occasioning death set aside.
  • Appellant sentenced to imprisonment for three years and six months, commencing 12 August 2004 and expiring 11 February 2008, with a non-parole period of two years expiring 11 August 2006.
  • The sentencing judge's order for disqualification of licence affirmed.

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a court must not treat as an aggravating factor any matter that already constitutes an element of the offence charged; where dangerous driving occasioning death is the charge, the harm caused cannot be separately aggravating under s 21A(2)(g).
  • Where an offender has already been charged and sentenced across two discrete offences each involving a separate victim, s 21A(2)(m) (multiple victims or a series of criminal acts) cannot be applied as a further aggravating circumstance without amounting to impermissible double-counting.
  • Voluntary return to Australia to face likely imprisonment, after residing and obtaining citizenship overseas, was characterised by the Court of Criminal Appeal as a highly unusual subjective mitigating circumstance warranting particular weight in sentencing.
  • Some degree of concurrence between sentences for related dangerous driving offences arising from the same incident may be appropriate, but wholly concurrent sentences risk failing to reflect the requirement for discrete punishment for each offence.
  • In reducing the sentence, the Court balanced significant objective seriousness (intoxication, suspended licence, speed, prior warning ignored) against strong subjective factors including contrition, youth, rehabilitation prospects, and the utilitarian value of an early guilty plea.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 52A(1)(c), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 21A(2)(g), 21A(2)(m)
- Criminal Appeal Act 1912 (NSW): s 6(3)

Cases cited:
- Bollen v The Queen (1998) 99 A Crim R 510
- Mitchell v The Queen (1998) 104 A Crim R 523
- R v Berg [2004] NSWCCA 300
- R v Birmingham (No 2) (1997) 96 A Crim R 545
- R v Cramp [2004] NSWCCA 264
- R v Jurisic (1998) 45 NSWLR 209
- R v Lykouras [2005] NSWCCA 8
- R v Miller [1995] 2 VR 348
- R v Owens (1987) 30 A Crim R 59
- R v Penn (1994) 19 MVR 367
- R v Previtera (1997) 94 A Crim R 76
- R v Tadrosse [2005] NSWCCA 145
- R v Way (2004) 60 NSWLR 168
- R v Whyte (2002) 55 NSWLR 252
- R v Wickham [2004] NSWCCA 193
- Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 2/2002 (2002) 137 A Crim R 196