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Kilic v The Queen

Kilic v The Queen

Case [2015] VSCA 331 8 December 2015

Intentional Causing Serious Injury

Sentencing

Use of Fire as a Weapon

Manifest Excess

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0092

YAVAZ KILIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2015
DATE OF JUDGMENT:	8 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 331
JUDGMENT APPEALED FROM:	[2015] VCC 392 (Judge Montgomery)

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CRIMINAL LAW – Intentionally cause serious injury – Sentencing – Use of fire as a weapon – Victim set alight by ex-partner – Permanent scarring suffered by victim – R v Alipek [2006] VSCA 66; Emery v The Queen [2011] VSCA 212; R v Rossi [2010] VSC 602, discussed – Seriousness of injuries – Consideration of worst category offending for intentionally causing serious injury – Manifest excess – Second highest sentence imposed –Director of Public Prosecutions v Terrick (2009) 24 VR 457; Arthars v The Queen (2013) 39 VR 613; Ali v The Queen [2010] VSCA 182, considered – Youthful offender with good prospects of rehabilitation – Azzopardi v The Queen (2011) 35 VR 43, applied – Offending not pre-meditated – Appeal allowed – Appellant re-sentenced.

CRIMINAL LAW – Practice and Procedure – Application to admit fresh evidence – R v Nguyen [2006] VSCA 184, applied – Whether injuries less serious than thought at time of sentence – Photographs of victim and affidavits of appellant’s sister and father not inconsistent with medical evidence at plea hearing – Evidence not fresh evidence – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston	Doogue O’Brien George
For the Respondent	Ms S M K Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA

WHELAN JA:

Overview

On 30 March 2015 appellant,[1] then aged 22, pleaded guilty to intentionally causing serious injury. The charge arose out of an incident where he doused his then girlfriend in petrol, and shortly afterwards set her on fire. The appellant also pleaded guilty to two uplifted summary charges of ‘use of a prohibited weapon without exemption’, and ‘dealing with suspected proceeds of crime’. On the same day, very shortly after the conclusion of the plea hearing, the appellant was sentenced to 14 years’ imprisonment for the charge of intentionally causing serious injury. The appellant was also sentenced to 12 months’ imprisonment on each of the two summary charges and orders of 6 months’ cumulation made on each, making a total effective sentence of 15 years’ imprisonment. A non-parole period of 11 years was fixed.
[1]The appeal also included an application for leave to appeal in respect of ground 2, which read: evidence regarding the impact of the offending upon the victim obtained after the imposition of sentences throws a different light on the circumstances which existed at the time of sentence, thereby revealing a substantial miscarriage of justice.

On 12 August 2015, Redlich JA granted leave to appeal on the following ground:[2]

1. The individual sentences, orders for cumulation and non-parole period fixed are manifestly excessive; in particular, the…

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 Kilic v The Queen

Details

AGLC: Kilic v The Queen [2010] VSCA 182
Case: [2015] VSCA 331
Decision Date: 8 December 2015

CaseChat Overview and Summary

The appellant, Kilic, was convicted of intentionally causing serious injury to the victim, his ex-partner, by setting her alight. The case was heard in the Court of Appeal, with the appeal focusing on the sentence imposed and an application to admit fresh evidence. The key issue was whether the original sentence was manifestly excessive, given the seriousness of the injuries sustained by the victim, and whether the fresh evidence provided a valid basis for reconsideration of the sentence.

The Court examined the principles set out in cases such as Director of Public Prosecutions v Terrick and Arthars v The Queen, which highlight the importance of considering the seriousness of the offending and the culpability of the offender. The Court noted that the use of fire as a weapon is particularly egregious, as it carries a high risk of causing severe injuries. The victim in this case suffered permanent scarring, which warranted a significant sentence. However, the Court also considered the appellant's age and prospects for rehabilitation, as well as the fact that the offending was not pre-meditated. These factors led the Court to conclude that the original sentence was a manifest excess and that a re-sentencing was warranted.

The Court of Appeal allowed the appeal and ordered that the appellant be re-sentenced. The Court acknowledged the gravity of the crime but also took into account the mitigating factors present in this case. The second highest sentence imposed in the relevant category was deemed appropriate, balancing the need for punishment with the prospects for the appellant’s rehabilitation. The Court further considered an application to admit fresh evidence, including photographs and affidavits, but found that this evidence did not conflict with the medical evidence available at the time of the original sentencing and therefore did not constitute fresh evidence warranting a re-sentencing hearing.

The final orders of the Court included the allowance of the appeal on the grounds of the manifest excess of the original sentence, and the direction that the appellant be re-sentenced by the original sentencing judge or another judge of the Supreme Court. The application to admit fresh evidence was refused.

Orders