JUDGES:	KAYE, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 March 2019
DATE OF JUDGMENT:	14 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 53
JUDGMENT APPEALED FROM:	R v Yucel [2018] VSC 506 (Taylor J)

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CRIMINAL LAW – Sentence – Prosecution appeal – Plea of guilty to unlawful and dangerous act manslaughter – Respondent shot victim in belief that he was in imminent danger of being shot himself – Respondent’s state of mind one of ongoing, genuine and reasonable fear – Case a ‘notch’ above self-defence – Early plea – Genuine remorse – Delay – Good prospects of rehabilitation – Sentence of five years’ imprisonment not manifestly inadequate in unusual circumstances of case – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Ms F L Dalziel SC with Mr D B B Lewis	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent:	Mr P Morrissey SC with Ms G Morgan	Stephen Andrianakis and Associates

KAYE JA:
NIALL JA:
WEINBERG JA:

On 10 August 2018, the respondent pleaded guilty to the manslaughter by unlawful and dangerous act of Rahat Khan at Dallas in Melbourne. He was sentenced to 5 years’ imprisonment with a non-parole period of 3 years.

The Director of Public Prosecutions has appealed against that sentence on the following ground:

The sentence imposed by the learned sentencing judge was manifestly inadequate.
Particulars:
In sentencing the respondent the learned sentencing judge:
(a)Failed to give sufficient weight to the nature and objective gravity of the offending;
(b)Failed to have sufficient regard to the maximum penalty and current sentencing practices for the offence of manslaughter;
(c)Failed to give sufficient weight to the principles of general deterrence, just punishment and denunciation;

(d) Gave too much weight to factors in mitigation.

Circumstances surrounding the offending

The respondent committed this offence outside his brother’s home in Broadmeadows. He shot the victim, Khan, twice with a small .25 calibre handgun, hitting him in the leg and in the body.

The background to this shooting may be briefly stated. It arose out of a series of events which the sentencing judge, appropriately, described as being ‘as complex as they are tragic’.[1]
[1]R v Yucel [2016] VSC 506 (‘Reasons’) [3].

For a little more than twelve months before the day in question, the respondent had been living in fear of a man named Farshad Rasooli. Khan was known to be an associate of Rasooli.

In May 2015, Rasooli and the respondent were involved in a public confrontation at the Hume Islamic Youth Centre. The dispute concerned a debt which Rasooli claimed was owed to him by the respondent. In the course of that confrontation, a friend of the respondent shot Rasooli in the leg. Rasooli declined to involve the police, but he made it known that he sought to visit revenge upon the respondent, and to obtain financial compensation…

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 Yucel

Details

AGLC: DPP v Yucel [2019] VSCA 53
Case: [2019] VSCA 53
Decision Date: 14 March 2019

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Yucel, the High Court of Australia was tasked with considering an appeal by the prosecution against the sentence imposed on the respondent, Yucel, who had pleaded guilty to the charge of unlawful and dangerous act manslaughter. Yucel shot and killed the victim, believing that he was in imminent danger of being shot himself, a situation that arose from an ongoing, genuine, and reasonable fear on Yucel’s part. The court was required to determine whether the sentence of five years' imprisonment was manifestly inadequate, given the unusual circumstances of the case, including Yucel's early plea, genuine remorse, and good prospects of rehabilitation, offset by the delay in bringing the case to trial.

The primary legal issue before the court was whether the sentence imposed was manifestly inadequate, considering the mitigating factors present in the case. The court considered the principles of sentencing for manslaughter, the nature of the respondent's state of mind, and the impact of the mitigating factors such as the early plea, genuine remorse, and the prospect of rehabilitation. Additionally, the court had to assess whether the sentence was appropriate in light of the unusual circumstances, particularly the respondent’s belief in imminent danger and the nature of the relationship between the parties.

The High Court held that the sentence of five years’ imprisonment was not manifestly inadequate in the unusual circumstances of this case. The court acknowledged the respondent’s state of mind, which was one of ongoing, genuine, and reasonable fear, placing the case at a level just above self-defence. The court also noted the mitigating factors of the early plea, genuine remorse, and good prospects of rehabilitation. Despite the delay in bringing the case to trial, the court concluded that the sentence was appropriate and reflected the seriousness of the offence while also considering the mitigating factors. Consequently, the appeal by the prosecution was dismissed.

The final orders of the court confirmed the sentence imposed by the lower court, dismissing the prosecution's appeal against the sentence of five years’ imprisonment for the offence of unlawful and dangerous act manslaughter. The court’s decision highlighted the importance of considering the unique circumstances and mitigating factors in sentencing, ensuring that justice is served in a manner that reflects both the gravity of the offence and the individual circumstances of the offender.

Orders