DPP v Oksuz (Unreported, County Court of Victoria, Judge Dean, 20 October 2014).
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CRIMINAL LAW – Sentence – Crown appeal – Respondent sentenced to 3 years’ imprisonment for reckless conduct endangering life, 2 years and 6 months’ imprisonment with cumulation of 6 months for blackmail, and 6 months’ imprisonment with cumulation of 6 months for attempting to pervert the course of justice – Total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years – Whether sentence for attempting to pervert the course of justice and total effective sentence manifestly inadequate.
CRIMINAL LAW – Sentence – Crown appeal – Residual discretion not to intervene – Factors relevant to exercise of discretion, including totality and parity principles and fault on the part of the Crown – Green v The Queen (2011) 244 CLR 462, DPP v Karazisis (2010) 31 VR 634 applied – Appeal allowed – Respondent resentenced to 4 years’ imprisonment for attempting to pervert the course of justice producing new total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years and 6 months.
Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent
Mr O P Holdenson QC
Stephen Andrianakis & Associates
REDLICH JA:
I have had the advantage of reading in draft the reasons of Kyrou JA and agree that both the individual sentence imposed on the charge of attempt to pervert the course of justice and the total effective sentence are manifestly inadequate. I agree with Kyrou JA that the appeal should be allowed and the respondent resentenced on the charge of attempt to pervert the course of justice to a term of imprisonment of four years. I would also make the orders for cumulation that Kyrou JA proposes so as to produce a total effective sentence of five years and six months imprisonment with a non-parole period of three years and six months.
I have also had the benefit of reading in draft the reasons of Croucher AJA. He agrees that the sentence…
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.
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Details
AGLC
DPP v Oksuz [2015] VSCA 316
Case
[2015] VSCA 316
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions (DPP) has appealed against the sentence imposed on the respondent, Oksuz, by the County Court. Oksuz was found guilty of reckless conduct endangering life, blackmail, and attempting to pervert the course of justice. He was sentenced to three years for the first offence, two years and six months for the second offence, and six months for the third offence, with the latter two sentences to run concurrently. The total effective sentence was four years, with a non-parole period of two years. The DPP argued that the sentence for the offence of attempting to pervert the course of justice and the total effective sentence were manifestly inadequate.
The central legal issues were whether the sentence for attempting to pervert the course of justice and the total effective sentence were manifestly inadequate and whether the court should exercise its residual discretion to intervene. The court considered the totality principle, the parity principle, and the fault on the part of the Crown in deciding whether to intervene. The court also examined the sentence for the offence of attempting to pervert the course of justice and the total effective sentence in relation to the seriousness of the offences and the circumstances of the case.
The Court of Appeal found that the sentence for the offence of attempting to pervert the course of justice was manifestly inadequate and that the total effective sentence was also inadequate. The court held that it had the power to adjust the sentence for the offence of attempting to pervert the course of justice without affecting the total effective sentence. The court considered the totality principle and section 16(3B) and (3C) of the Sentencing Act 1991 in determining the appropriate sentence for the offence of attempting to pervert the course of justice. The court found that the current offences were committed while Oksuz was on parole and that the sentence for the cancelled parole should be completed at the time of the sentence for the current offences.
The Court of Appeal allowed the appeal and resentenced Oksuz to four years for the offence of attempting to pervert the course of justice, producing a new total effective sentence of five years and six months with a non-parole period of three years and six months. The court held that the new sentence was appropriate in the circumstances of the case and that the residual discretion should not be exercised in this case.