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MICHAEL Guseli v The Queen

MICHAEL Guseli v The Queen

Case [2019] VSCA 29 22 February 2019

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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

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’).

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.

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.
[3]Guseli v The Queen [2018] VSCA 182.

For the reasons that…

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 MICHAEL Guseli v The Queen

Details

AGLC: Michael Guseli v The Queen [2019] VSCA 29
Case: [2019] VSCA 29
Decision Date: 22 February 2019

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