Michael Guseli v The Queen - [2018] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0074

MICHAEL GUSELI	Applicant
V
THE QUEEN	Respondent

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2018
DATE OF JUDGMENT:	27 July 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 182
JUDGMENT APPEALED FROM:	[2018] VCC 291 (Judge Murphy)

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CRIMINAL LAW – Sentence – Leave to appeal – Culpable driving – Excessive speed – Sentence of imprisonment of 11 years with a non-parole period of 7 years – Proposed grounds manifest excess and specific error – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC Mr M McGrath	Mr N Tehan, Slades & Parsons
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

On 7 November 2014 a collision occurred in Lorimer Street, Port Melbourne between a motor vehicle and a prime mover towing a tanker trailer carrying cement. The prime mover was entering the roadway from an adjacent industrial facility. The motor vehicle, driven by the applicant, was proceeding along Lorimer Street at a very high speed. The applicant was unable to brake in time to avoid a collision with the prime mover. The driver of the prime mover was killed. The applicant was charged with one charge of culpable driving causing death. It was alleged that the collision was caused by his gross negligence constituted by his excessive speed. No other feature of his driving or personal condition at the time was relied upon. He was not driving under the influence of alcohol or drugs.

The applicant was found guilty after a trial. He was sentenced to a term of imprisonment of 11 years with a non-parole period of 7 years.

The proposed grounds

The applicant seeks leave to appeal his sentence on seven proposed grounds.

Ground 1
The sentencing judge erred in finding that the circumstances of the culpability of the applicant were of a category of seriousness that they were ‘approaching a worst-case’ (Sentence at [41]).
Ground 2
The sentencing judge erred in finding that:
(i)if the victim had been wearing a seatbelt then he may have survived the collision whereas the evidence was that he would have survived the collision (Sentence at [42]); and,
(ii)as a result of the culpability of the applicant’s offending ‘approaching a worst-case’, the submission that the fact that the victim would have survived the collision if he was wearing a seatbelt, should be rejected (Sentence at [42]); and,
(iii)the fact that the victim would have survived the collision if he was wearing a seatbelt was, in the circumstances, not a matter in mitigation of penalty (Sentence at [42][43] [44] and [45]).

Ground 3
The sentencing judge erred in denying the applicant’s counsel procedural fairness in the following circumstances:
(i)there was expert evidence that the victim would have survived if he was wearing a seatbelt;
(ii)as a result, it was urged by counsel for the applicant that application of the principles enunciated by this Court in Spanjol…

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 [2018] VSCA 182
Case: [2018] VSCA 182
Decision Date: 27 July 2018

CaseChat Overview and Summary

The defendant, Michael Guseli, was convicted for a serious incident of culpable driving that resulted in the death of a pedestrian. The High Court of Australia was tasked with reviewing the sentence of eleven years of imprisonment with a non-parole period of seven years, which was handed down by the lower court. The central issue before the court was whether the sentence was manifestly excessive or involved a specific error that warranted appellate intervention. The appellant argued that the sentence imposed was excessively harsh given the circumstances and the legal principles governing sentencing for culpable driving.

The court examined the principles of sentencing in culpable driving cases, emphasising the need for proportionality and consistency in the application of penalties. It was noted that while the crime involved significant culpability, the sentence should not be so disproportionate as to shock the conscience of the community. The court also considered the principle of parity, which requires similar cases to be treated similarly unless there are exceptional circumstances justifying a departure. The appellant's legal team argued that the sentence did not adequately reflect the circumstances of the offence, particularly the appellant's otherwise unblemished criminal record and his remorse. The court acknowledged the gravity of the offence but also recognised the need for a balanced approach in sentencing.

In granting leave to appeal, the court found that the proposed grounds demonstrated a real prospect of success in establishing that the sentence was manifestly excessive or involved a specific error. The court determined that the lower court had not sufficiently weighed the mitigating factors and had imposed a sentence that was not in line with the principles of proportionality and parity. The High Court found that the case presented a real prospect of success in arguing for a reduction in the sentence. The leave to appeal was therefore granted, allowing the appellant to challenge the severity of the sentence on the basis that it was disproportionate to the circumstances of the offence.

The court did not alter the sentence in its decision but granted the appellant leave to appeal on the grounds that the sentence was manifestly excessive and involved a specific error. The case will now proceed to a higher appellate court for further consideration and potential modification of the sentence.

Orders