| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0063 |
| AYTAC GURBUZ | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 August 2024 |
| DATE OF JUDGMENT: | 2 September 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 189 |
| JUDGMENT APPEALED FROM: | [2024] VCC 70 (Judge Lauritsen) |
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CRIMINAL LAW – Appeal – Sentence – Licence disqualification order – Whether disqualification order manifestly excessive – Where length of order 12 times statutory default – Where judge did not give reasons for length of order – Where no aggravating features – Where practical effect of order depends on date of release from custody – Appeal allowed – Disqualification order imposed from date of release from custody.
Sentencing Act 1991, ss 5(2AA)(a), 89(4), 89B.
Lefebure v The Queen (2000) 112 A Crim R 41; R v Tran (2002) 4 VR 457; Koukoulis v The Queen (2020) 91 MVR 147; Chamma v The Queen [2020] VSCA 232; Tuarae v The King [2023] VSCA 303; Bell v The Queen (2016) 77 MVR 336; Rodi v The Queen [2011] VSCA 48; R v Wootton [2002] VSCA 165; Parker v The King (2022) 102 MVR 46, discussed.
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| Counsel | |||
| Applicant: | Mr J Barrera | ||
| Respondent: | Mr D Glynn | ||
| Solicitors | |||
| Applicant: | Stary Norton Halphen | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
WALKER JA
ORR JA:
The applicant, Aytac Gurbuz, pleaded guilty to five serious criminal offences and was sentenced as follows:[1]
[1]R v Gurbuz [2024] VCC 70 (‘Reasons’).
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Armed robbery[2] | 25 years | 24 months | 6 months |
| 2 | Common assault[3] | 5 years | 6 months | Nil |
| 3 | False imprisonment[4] | 10 years | 18 months | 6 months |
| 4 | Armed robbery[5] | 25 years | 30 months | Base |
| 5 | Theft of a motor vehicle[6] | 10 years | 12 months | Nil |
| Total Effective Sentence: | 3 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 2 years and 2 months | |||
| Pre-sentence Detention Declared: | 324 days | |||
| Section 6AAA Statement: | Total Effective Sentence 5 years and 5 months’ imprisonment | |||
| Other Relevant Orders: 1. Cancellation of licence or permit to drive a motor vehicle and disqualification from obtaining a licence or permit for 36 months. | ||||
[2]Contrary to s 75A of the Crimes Act 1958.
[3]Contrary to the common law.
[4]Contrary to the common law.
[5]Contrary to s 75A of the Crimes Act 1958.
[6]Contrary to s 74(1) of the Crimes Act 1958.
He now seeks leave to appeal the order that he be disqualified from obtaining a licence or permit to drive a motor vehicle for a period of 36 months. The sole proposed ground of appeal is that the period of 36 months is manifestly excessive.
The applicant also seeks an extension of time within which to file his application for leave to appeal. The respondent opposed the extension of time on the basis that the proposed ground of appeal was not reasonably arguable.
We would grant the application for an extension of time and grant…
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- AGLC
- Gurbuz v The King [2024] VSCA 189
- Case
- [2024] VSCA 189
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the principles of sentencing and the statutory framework governing licence disqualification orders. It noted that the statutory maximum for such orders was significantly lower than the one imposed. The Court examined the absence of reasons for the length of the order and the lack of aggravating factors. It concluded that the disqualification order was manifestly excessive and that the judge failed to adequately justify the length of the order. The Court also highlighted that the practical effect of the disqualification order depended on the date of release from custody, which had not been taken into account by the trial judge.
In light of these considerations, the Court of Appeal allowed the appeal and quashed the disqualification order. It imposed a new disqualification order to commence from the date of release from custody, ensuring that it was proportionate and justifiable. The Court emphasised the importance of providing reasons for the length of disqualification orders and the need for proportionality in sentencing. This decision reinforces the requirement for judges to provide adequate justification for the length of licence disqualification orders and to consider the practical implications of such orders.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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