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Gurbuz v The King

Gurbuz v The King

Case [2024] VSCA 189 2 September 2024

Appeal

Sentencing

Licence disqualification order

Criminal Law

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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…

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 Gurbuz v The King

Details

AGLC: Gurbuz v The King [2024] VSCA 189
Case: [2024] VSCA 189
Decision Date: 2 September 2024

CaseChat Overview and Summary

The case of Gurbuz v The King involved an appeal against a sentence and licence disqualification order imposed by the court. The appellant, Gurbuz, was convicted of a crime and subsequently sentenced. The central issue was the length of the licence disqualification order, which was 12 times the statutory default, and whether this was manifestly excessive. The trial judge did not provide reasons for the length of the disqualification order, and there were no aggravating factors present. The Court of Appeal had to determine whether the disqualification order was excessively long and if it was imposed correctly.

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