Altun v The Queen - [2014] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0178

ALIRIZA ALTUN
	Applicant
v
THE QUEEN
	Respondent

---

JUDGES	WEINBERG and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 March 2014
DATE OF JUDGMENT	25 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 46
JUDGMENT APPEALED FROM	DPP v Altun (Unreported, County Court of Victoria, Judge Parrish, 27 August 2013)

---

CRIMINAL LAW – Application for leave to appeal against sentence – Applicant charged with dangerous driving causing serious injury – Applicant sentenced to three years and three months with non-parole period of two years – Whether sentence manifestly excessive – Applicant suffered serious acquired brain injury during commission of offence – ‘Extra-curial’ punishment – Leave granted – Appeal allowed – Head sentence confirmed – Non-parole period reduced to 14 months – No point of principle.

---

APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr P F Tehan QC	Patrick Dwyer Solicitors
For the Crown	Ms K Argiropoulos	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with the orders proposed by Coghlan JA.

COGHLAN JA:

On 20 May 2013 the applicant pleaded guilty, in the County Court at Melbourne to the offences set out below:

Charge
Offence

Maximum

Sentence

Cumulation

1. Dangerous driving causing serious injury 5 years 3 years Base

Summary charge Driving whilst disqualified 2 years 6 months 3 months

Summary charge Unlawful assault 3 months $500 fine N/A

TotalEffectiveSentence: 3 years and 3 months’ imprisonment

Non-ParolePeriod: 2 years

s 6AAA declaration pursuant to Sentencing Act 1991: 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 9 months.

Other relevant orders: Disqualified from obtaining a driver’s licence for a period of 5 years.

On 27 August 2013, the applicant was sentenced as set out above.

By Notice of Appeal dated 24 September 2013, the applicant sought leave to appeal those sentences on the following grounds:

1.The sentence for the charge of dangerous driving causing serious injury, the total effective sentence and the non-parole period are each manifestly excessive.
2.The learned sentencing judge erred in reducing the weight given to the applicant’s plea of guilty by reason of the strong prosecution case.
3.The learned sentencing judge erred in giving no real weight to remorse.

On 4 December 2013, Ashley JA refused leave to appeal and the applicant elected to have the application heard by a Full Bench.

On 7 March 2014, an application was made for an adjournment to explore whether or not a fresh evidence ground should be pursued. That application was refused.

After hearing argument on the application for leave to appeal, the Court indicated that such leave would be granted, and the appeal allowed, on the basis that the non-parole period was manifestly excessive.

The relevant facts, as set out in the Prosecutor’s summary of opening, are as follows:

Charges
1.Aliriza ALTUN (‘the accused man’) is charged with 3 offences: Dangerous Driving Causing Serious Injury (on Indictment); Driving whilst disqualified (uplifted summary charge); and Unlawful Assault (uplifted summary…

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 Altun v The Queen

Details

AGLC: Altun v The Queen [2014] VSCA 46
Case: [2014] VSCA 46
Decision Date: 25 March 2014

CaseChat Overview and Summary

In the High Court of Australia, the applicant, Altun, sought leave to appeal against his sentence imposed by the Court of Appeal of the Supreme Court of Victoria. Altun was convicted of dangerous driving causing serious injury, and sentenced to three years and three months imprisonment, with a non-parole period of two years. The key legal issue before the Court was whether the sentence was manifestly excessive. Altun argued that the sentence should be reduced, taking into account the serious acquired brain injury he sustained during the commission of the offence, and that his life had changed significantly due to this injury. The Court considered whether the sentence imposed was manifestly excessive and whether there were other factors that should be taken into account, such as the ‘extra-curial’ punishment Altun had already endured.

The Court held that the sentence was manifestly excessive, taking into account the mitigating factors presented. The Court acknowledged that Altun had suffered a serious acquired brain injury during the commission of the offence, which had a significant impact on his life. The Court also considered the ‘extra-curial’ punishment Altun had already endured, such as the impact on his family and his own suffering, which were not fully reflected in the original sentence. The Court concluded that the sentence was manifestly excessive and granted leave to appeal. The appeal was allowed, and the head sentence was confirmed, but the non-parole period was reduced to 14 months. The Court found that there was no point of principle involved in the case.

The final orders of the Court were that leave to appeal was granted, the appeal was allowed, the head sentence was confirmed, and the non-parole period was reduced to 14 months. The Court did not find that there was a point of principle involved in the case.

Orders