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…
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- AGLC
- Michael Guseli v The Queen [2018] VSCA 182
- Case
- [2018] VSCA 182
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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