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Gurovski v The Queen

Gurovski v The Queen

Case [2018] VSCA 3 1 February 2018

Natural Justice & Procedural Fairness

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0147

JOHN GUROVSKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 January 2018
DATE OF JUDGMENT:	1 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 3
JUDGMENT APPEALED FROM:	DPP v Gurovski [2017] VCC 179 (Judge Campton)

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CRIMINAL LAW – Appeal against sentence – Negligently causing serious injury by driving – 3 years’ imprisonment – Applicant assessed as suitable for community correction order – Whether judge sentenced applicant on factual basis other than that agreed by parties – Whether judge denied applicant procedural fairness – Whether judge erred in finding that community correction order was not an appropriate sentencing disposition – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Gyorffy QC	Galbally Rolfe
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA

KYROU JA:

Introduction and summary

The applicant pleaded guilty to the charges set out in the table below and, on 2 March 2017, he was sentenced as set out in that table.[1]
[1]DPP v Gurovski [2017] VCC 179 (‘Sentencing remarks’).

Charge on indictment
Charge	Offence	Maximum	Sentence
1	Negligently causing serious injury [s 24 Crimes Act 1958 (‘CA’)]	10 years [s 24 CA] Mandatory minimum term of licence disqualification of 2 years [s 89(2) Sentencing Act 1991]	3 years
Related summary charges
6, 14, 19, 23, 29, 32, 36, 43 and 47	Record false or misleading work record [s 325(1) Heavy Vehicle National Law (‘HVNL’)[2]]	$10,000 fine [s 325(1) HVNL]	Aggregate fine of $9,000
10, 13, 34, 41 and 46	Use mobile phone while driving [r 300(1) Road Safety Road Rules 2009 (‘RSRR’)]	10 penalty units [r 300(1) RSRR]	Aggregate fine of $1,600
11	Failing to record information immediately after starting work [s 297(2) HVNL]	$6,000 fine [s 297 HVNL]	$500 fine
Total Effective Sentence: 3 years’ imprisonment
Non-Parole Period: 2 years’ imprisonment
Pre-Sentence Detention Declaration: 2 days
6AAA Statement: 4 years and 6 months’ imprisonment with a non-parole period of 3 years and a total fine of $17,000
Other relevant orders: Licence cancelled and disqualified from obtaining a licence for 2 years from 2 March 2017

[2]The HVNL is set out in the schedule to the Heavy Vehicle National Law Act 2012 (Qld) and applies in Victoria by virtue of s 4 of the Heavy VehicleNational Law Application Act 2013.

The negligently causing serious injury (‘NCSI’) charge arose out of serious injuries that were sustained by the 18 year old female driver of a Mazda 6 sedan when the truck being driven by the applicant moved on to the wrong side of the road and collided with the victim’s sedan.

The applicant seeks leave to appeal against the sentence imposed on the NCSI charge on three grounds. The first ground is that the judge denied him procedural fairness by sentencing him on a factual basis other than…

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 Gurovski v The Queen

Details

AGLC: Gurovski v The Queen [2018] VSCA 3
Case: [2018] VSCA 3
Decision Date: 1 February 2018

CaseChat Overview and Summary

Gurovski v The Queen involved an appeal by the applicant against his sentence following a conviction for negligently causing serious injury by driving. The case was heard in the High Court of Australia. The applicant was convicted of negligently causing serious injury by driving and was sentenced to three years’ imprisonment, with the possibility of parole after serving two years. The applicant sought leave to appeal against the sentence on several grounds, including that the sentencing judge had not sentenced him on the factual basis agreed by the parties, that the judge had denied him procedural fairness, and that the judge had erred in finding that a community correction order was not an appropriate sentencing disposition.

The primary legal issues before the court were whether the sentencing judge had sentenced the applicant on a factual basis other than that agreed by the parties, whether the judge had denied the applicant procedural fairness, and whether the judge had erred in finding that a community correction order was not an appropriate sentencing disposition. The court also considered whether the sentence was manifestly excessive. The applicant argued that the sentencing judge had not taken into account all relevant factors, including his personal circumstances and the mitigating factors presented, and that the sentence was therefore manifestly excessive.

The court found that the sentencing judge had not sentenced the applicant on a factual basis other than that agreed by the parties, and that the judge had not denied the applicant procedural fairness. The court also found that the sentencing judge had not erred in finding that a community correction order was not an appropriate sentencing disposition. The court held that the sentence was not manifestly excessive, and that the sentencing judge had properly considered all relevant factors in imposing the sentence. The court therefore refused the applicant’s application for leave to appeal.

Orders