MICHAEL Guseli v The Queen

Case [2019] VSCA 29


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0074

MICHAEL GUSELI Appellant
v
THE QUEEN Respondent

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JUDGES: KYROU and WEINBERG JJA and TAYLOR AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 30 January 2019
DATE OF JUDGMENT: 22 February 2019
MEDIUM NEUTRAL CITATION: [2019] VSCA 29
JUDGMENT APPEALED FROM: DPP v Guseli [2018] VCC 291 (Judge Murphy)

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CRIMINAL LAW – Appeal – Sentence – Culpable driving causing death – 11 years’ imprisonment with non-parole period of 7 years – Deceased not wearing seatbelt – Deceased would have survived if he had been wearing seatbelt – Whether judge should have taken into account deceased’s failure to wear seatbelt in reduction of sentence – Appeal allowed – Spanjol v The Queen (2016) 55 VR 350 and George v The Queen (2017) 80 MVR 436 applied.

CRIMINAL LAW – Appeal – Sentence – Culpable driving causing death – Whether judge erred in describing offence as ‘approaching a worst-case’ – Whether judge erred in stating that plea of not guilty relevant to specific deterrence and prospects of rehabilitation – Whether judge misapplied current sentencing practices – Whether judge erred in stating that wider community must be ‘placated’ by sentence – Whether sentence manifestly excessive. 

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APPEARANCES: Counsel Solicitors
For the Appellant Mr P Tehan QC
with Mr M McGrath
Slades & Parsons
For the Respondent Mr B Kissane QC
with Mr J Gullaci
Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
WEINBERG JA
TAYLOR AJA:

Introduction and summary

  1. On 7 February 2018, the appellant was found guilty by a jury of one charge of culpable driving causing death.[1]  The maximum penalty for that offence is 20 years’ imprisonment.  On 14 March 2018, he was sentenced to 11 years’ imprisonment with a non-parole period of 7 years.[2]

    [1]Crimes Act 1958 s 318(1).

    [2]DPP v Guseli [2018] VCC 291 (‘Sentencing remarks’).

  1. The charge arose out of a collision between the appellant’s V8 sedan travelling at 182 kilometres per hour in a 60 kilometre per hour zone 3.8 seconds prior to impact, and a prime mover driven by the victim, Eddie Kocjancic, travelling at about 10 kilometres per hour. 

  1. The appellant sought leave to appeal against his sentence on seven proposed grounds of appeal.  On 27 July 2018, he was granted leave to appeal on six of those grounds by a judge of this Court.[3]  He now appeals on the grounds that: the judge erred in finding that his offending was ‘approaching a worst-case’; the judge erred concerning the legal consequences of Mr Kocjancic’s failure to wear a seatbelt; the judge erred in finding that the appellant’s plea of not guilty was relevant to specific deterrence and prospects of rehabilitation; the judge misapplied current sentencing practices to find that his sentence should be ‘of a high order’; the judge erred in finding that the wider community must be ‘placated’ by the sentence; and the sentence is manifestly excessive. 

  1. For the reasons that…

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Michael Guseli v The Queen [2019] VSCA 29
Case
[2019] VSCA 29
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CaseChat Overview and Summary

Michael Guseli appealed against his conviction and sentence for culpable driving causing death. The deceased in the incident was not wearing a seatbelt at the time of the accident, which Guseli argued should have been considered in the reduction of his sentence. The case was heard in the Court of Appeal. The appeal raised several legal issues, including whether the sentencing judge should have taken into account the deceased's failure to wear a seatbelt, whether the judge correctly assessed the seriousness of the offence, and if the sentence was manifestly excessive.

The court found that the sentencing judge should have considered the deceased's failure to wear a seatbelt in reducing the sentence, in line with Spanjol v The Queen and George v The Queen. The court also found that the judge misapplied current sentencing practices by describing the offence as 'approaching a worst-case', and by stating that the plea of not guilty was relevant to specific deterrence and prospects of rehabilitation. Furthermore, the court found that the judge erred in stating that the wider community must be 'placated' by the sentence. The court concluded that the sentence was manifestly excessive and allowed the appeal.

The Court of Appeal allowed the appeal and remitted the matter to the sentencing judge for reconsideration. The Court of Appeal found that the original sentence was manifestly excessive and that the sentencing judge had misapplied current sentencing practices. The Court of Appeal also found that the deceased's failure to wear a seatbelt should have been taken into account in reducing the sentence. The Court of Appeal allowed the appeal and remitted the matter to the sentencing judge for reconsideration, indicating that the original sentence was manifestly excessive.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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