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DPP v Torun

DPP v Torun

Case [2015] VSCA 15 17 February 2015

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0077

DIRECTOR OF PUBLIC PROSECUTIONS

MEHMET BUGRA TORUN

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JUDGES:	ASHLEY, WHELAN and BEACH JJA
WHERE HELD:	BENDIGO
DATE OF HEARING:	10 February 2015
DATE OF JUDGMENT:	17 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 15
JUDGMENT APPEALED FROM:	[2014] VSC 146 (Croucher J)

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CRIMINAL LAW – Sentencing – Director’s appeal – Manslaughter by unlawful and dangerous act – Unintended discharge of firearm – Sentence of 8 years’ imprisonment with non-parole period of 5 years – Not manifestly inadequate – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms S Borg	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Dr S McNicol QC with Mr Neill Hutton	Camerons Lawyers

ASHLEY JA:

I have had the advantage of reading in draft the joint judgment of Whelan and Beach JJA. I respectfully agree with their Honours that this appeal should be dismissed. I do so very substantially for the reasons which they give.

I desire to add a little about the prosecution of this matter by the Crown on the plea, and by the Director of Public Prosecutions in this Court. I consider that it does much to explain why an appeal which, in my view, lacked merit, was instituted and pursued.

As the joint judgment records, the respondent was originally charged with murder. Submissions made on the plea show that, before the committal hearing, the respondent offered to plead guilty to manslaughter. The plea was not then accepted, but it was accepted after that hearing.

The prosecutor relied at the plea upon a summary of prosecution opening. The summary, dated 13 March 2014, is part of the material before this Court.

13 March 2014 was only a few days before the first day of the plea hearing. But it was about five weeks after the Crown had decided to accept the respondent’s plea of guilty to manslaughter.

That plea was founded upon the agreed facts recounted at paragraph 26 in the joint judgment, supplemented by the judge’s findings that the respondent deliberately pointed the gun at the victim, Kara Doyle, and deliberately pulled the trigger. In all, the agreed and the additional facts made this a killing by a drug-affected man who had no intention of killing or injuring the victim, but was rather a killing in the course of play-acting gone terribly wrong.

But notwithstanding the circumstances of offending as they were confined by agreement between the Crown and the defence, the summary to which I have referred was devoted in large part to a description of the respondent’s volatile relationship with Ms Doyle over a period of months, to his and her use of illegal drugs, to his erratic and threatening conduct towards a considerable number of people over that period of months (in particular, threats to kill or injure), to his desire to obtain and then retain a firearm and ammunition in the day or so before the killing, to a…

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 DPP v Torun

Details

AGLC: DPP v Torun [2015] VSCA 15
Case: [2015] VSCA 15
Decision Date: 17 February 2015

CaseChat Overview and Summary

The case of DPP v Torun involved an appeal by the Director of Public Prosecutions against the sentencing of Torun, who had been convicted of manslaughter by an unlawful and dangerous act. Torun had unintentionally discharged a firearm, resulting in the death of the victim. The appeal was heard in the High Court of Australia. The Director argued that the sentence of eight years' imprisonment, with a non-parole period of five years, was manifestly inadequate and that there was a point of principle justifying the appeal. Torun contended that the sentence was appropriate given the circumstances.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate and whether there was a point of principle that warranted the Director's appeal. The court needed to assess the appropriateness of the sentence in light of the nature and circumstances of the offence and the principles of sentencing. The court also had to determine whether the sentence departed so markedly from the principles of sentencing that it constituted a substantial miscarriage of justice.

The court concluded that the sentence was not manifestly inadequate and found no point of principle that justified the appeal. The court emphasised that the sentence should reflect the seriousness of the offence and the culpability of the offender. However, the court noted that the trial judge had considered the mitigating factors, including Torun's genuine remorse and the accidental nature of the discharge. The court held that the sentence was within the range of reasonable responses and did not constitute a substantial miscarriage of justice. Consequently, the appeal was dismissed.

The High Court affirmed the sentence imposed by the trial judge and dismissed the Director's appeal. The court's decision underscored the importance of considering both the gravity of the offence and the circumstances surrounding it when determining an appropriate sentence. The court found that the sentence was not manifestly inadequate and did not depart from the principles of sentencing to an extent that warranted an appeal.

Orders