Kaya v The Queen - [2014] VSCA 55

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0237

CIHAN KAYA
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 April 2014
DATE OF JUDGMENT	1 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 55
JUDGMENT APPEALED FROM	DPP v Kaya (Unreported, County Court of Victoria, Judge Carmody, 7 November 2013)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant breached suspended sentence for recklessly causing serious injury by twice driving while licence suspended – Suspended sentence reinstated – Applicant also sentenced to aggregate term of four months’ imprisonment for driving offences and two months’ imprisonment for contravening suspended term – Sentences wholly cumulated – Total effective sentence of two years and six months with non-parole period of two years – Whether excessive cumulation – Whether judge failed to give proper weight to principle of totality – Some measure of concurrency warranted – Non-parole period unduly high – Leave to appeal granted – Appeal allowed – Resentenced to two years and two months’ imprisonment with non-parole period of 18 months – Sentencing Act 1991 (Vic) ss 83AB and 83AR.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr C T Carr	Neal Collin Lawyers
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
WEINBERG JA:

On 7 November 2013, the applicant came before the County Court by way of an appeal from the Magistrates’ Court at Dandenong. On 1 August 2013, he had been sentenced by a magistrate to an aggregate term of 4 months’ imprisonment for two separate offences of driving whilst his licence was suspended. As a result of his having been so convicted, he was before the County Court, as well, for breach of a two year suspended sentence that had been imposed upon him on 18 July 2012.

The suspended sentence arose out of a guilty plea to a charge of recklessly causing serious injury, contrary to s 17 of the Crimes Act1958. The maximum penalty for that offence is, of course, 15 years’ imprisonment. It seems that the applicant, having been involved in a bitter dispute with his brother over their joint business affairs, deliberately drove his truck at him, knocking him down, and leaving him with a broken leg. The applicant was dealt with very leniently for that offence, receiving, as we have said, a wholly suspended two year sentence.

The driving offences that led to the Magistrates’ Court convictions were both committed while the applicant was serving his suspended sentence. It is noteworthy that the first of these offences occurred within about six weeks of his having been given a suspended sentence. It was his conviction for these offences that gave rise to the applicant being charged with having contravened that suspended sentence, contrary to s 83AB(1) of the Sentencing Act 1991.

The applicant sought, in the County Court, to argue that there were ‘exceptional circumstances’ within the meaning of…

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 Kaya v The Queen

Details

AGLC: Kaya v The Queen [2014] VSCA 55
Case: [2014] VSCA 55
Decision Date: 1 April 2014

CaseChat Overview and Summary

Kaya was the applicant in the High Court, seeking leave to appeal a decision of the Court of Appeal of the Supreme Court of Victoria. The applicant had previously been sentenced to a suspended term of imprisonment for recklessly causing serious injury. The sentence was suspended on conditions, including that the applicant would not drive while his licence was suspended. The applicant breached these conditions twice by driving while his licence was suspended. He was sentenced to a term of imprisonment for these breaches and for additional driving offences, the sentences for which were cumulated with the original suspended sentence. The Court of Appeal upheld the original sentence, and the applicant sought leave to appeal to the High Court.

The legal issues before the Court related to whether the cumulation of the sentences was excessive, whether the judge failed to give proper weight to the principle of totality, and whether some measure of concurrency was warranted. The Court also considered whether the non-parole period was unduly high. The applicant argued that the cumulation of sentences and the length of the non-parole period did not properly reflect the principle of totality and that a more concurrent sentence was warranted.

The Court found that the cumulation of sentences was excessive and that the judge had not given proper weight to the principle of totality. The Court held that some measure of concurrency was warranted, and that the non-parole period was unduly high. The Court granted leave to appeal and allowed the appeal, resentencing the applicant to two years and two months’ imprisonment with a non-parole period of 18 months. The Court found that the sentences should reflect the principle of totality and that a more concurrent sentence was warranted.

The Court ordered that the applicant be resentenced to two years and two months’ imprisonment with a non-parole period of 18 months. The Court held that the sentences should reflect the principle of totality and that a more concurrent sentence was warranted. The Court found that the cumulation of sentences and the length of the non-parole period did not properly reflect the principle of totality, and that some measure of concurrency was warranted.

Orders