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Gardezi v The King

Gardezi v The King

Case [2023] VSCA 297 5 December 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0128

SYED MUHAMMAD GARDEZI	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2023
DATE OF JUDGMENT:	5 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 297
JUDGMENT APPEALED FROM:	[2023] VCC 1082 (Judge McInerney)

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CRIMINAL LAW – Leave to appeal – Sentence – Seriousness of offending – Whether finding of objective seriousness open – Where relevant driving occurred over a few minutes – Driving seriously dangerous – Few minutes a significant period when driving at speed – Absence of other aggravating factors did not preclude finding gravity above mid-range – Sentence on each charge within range – Degree of cumulation modest – Leave to appeal refused.

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Counsel
Applicant:		Mr CA Hooper
Respondent:		Mr BF Kissane KC
Solicitors
Applicant:	Garde-Wilson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KIDD AJA:

On 19 June 2023, the applicant, now aged 29 years,[1] pleaded guilty before a judge of the County Court to dangerous driving causing serious injury[2] (charge 1) and conduct endangering persons[3] (charge 2).
[1]His date of birth is 24 November 1993.
[2]Contrary to Crimes Act 1958, s 319(1A).
[3]Contrary to Crimes Act 1958, s 23.
Following a plea, on 26 June 2023 a judge of the County Court sentenced the applicant as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Dangerous driving causing serious injury	5 years	8 months’ imprisonment and a 2-year Community Correction Order	Base
2	Conduct endangering persons	5 years	4 months’ imprisonment	1 month’s imprisonment
Total Effective Sentence:		9 months’ imprisonment and a 2-year Community Correction Order
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		14 months’ imprisonment
Other Relevant Orders: 1. Driver licence cancelled and disqualified for 18 months from 26 June 2023

Grounds of appeal

The applicant seeks leave to appeal against sentence on the following grounds:
1. The learned sentencing judge erred in finding that the objective seriousness of charges 1 and 2 was ‘medium–high’.
2. The sentences imposed on charges 1 and 2 are manifestly excessive.
3.The learned trial judge erred in partially cumulating the sentence in respect of charge 2 upon the sentence imposed for charge 1.
Particulars
•The evidence discloses that the conduct constituting both charges occurred in the same transaction.
•The evidence does not disclose that the vehicle travelling in the opposite direction to that of the Applicant had to take evasive manoeuvres, nor the distance between the two vehicles.
•The evidence does not disclose the extent to which the occupants of the second vehicle were in fact exposed to the risk of serious injury.
•Secondary victim Mihailidis had to take evasive manoeuvres after the Applicant had collided with the tree. Mihailidis was travelling at 50 km/h at the time.
•The extent to which evasive manoeuvres were required is unclear from the statements of Mr Mihailidis and Ms Villaflor.
•The extent to which the secondary victims were put…

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 Gardezi v The King

Details

AGLC: Gardezi v The King [2023] VSCA 297
Case: [2023] VSCA 297
Decision Date: 5 December 2023

CaseChat Overview and Summary

The appellant, Mr. Gardezi, sought leave to appeal against his sentence, contending that the primary judge failed to consider the objective seriousness of his offending. The case was heard in the High Court of Australia, which was required to determine whether the trial judge correctly assessed the objective seriousness of the driving conduct and whether the sentence imposed was appropriate. The appellant argued that the trial judge did not adequately consider the objective seriousness of his actions, given the brief duration of the relevant driving, and that the sentence imposed was too severe.

The court examined the trial judge's assessment of the objective seriousness of the driving, noting that while the relevant driving occurred over a few minutes, it was conducted at high speed and constituted seriously dangerous driving. The High Court held that the few minutes were a significant period when considering the speed and nature of the driving. The court further found that the absence of other aggravating factors did not preclude a finding that the gravity of the offending was above the mid-range. Additionally, the court considered the sentence imposed on each charge, which was within the appropriate range, and the modest degree of cumulation, ultimately concluding that the trial judge's sentence was appropriate.

Consequently, the court found that the primary judge had adequately considered the objective seriousness of the offending and the appropriate sentence. The High Court determined that the appeal did not disclose any error capable of justifying the granting of leave. The court dismissed the appeal and refused the appellant leave to appeal.

Orders