Muhittin Guven v The Queen - [2017] VSCA 92

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0089

MUHITTIN GUVEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and PRIEST JJA, and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 March 2017
DATE OF JUDGMENT:	2 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 92
JUDGMENT APPEALED FROM:	DPP v Guven [2016] VCC (Unreported, County Court of Victoria, Judge Douglas, 21 April 2016)

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CRIMINAL LAW — Appeal — Sentence — Aggravated burglary and associated offences — Victim appellant’s estranged wife — Appellant diagnosed with schizophrenia — Sentenced to Court Secure Treatment Order for 7 years — Whether manifestly excessive — Whether Verdins principles given sufficient weight — Community protection — No error — Appeal dismissed — R v Verdins (2007) 16 VR 269 — Veen v The Queen (No 2) (1988) 164 CLR 465 — Sentencing Act 1991 ss 94A, 94C.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T R Marsh	Victoria Legal Aid
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

OSBORN JA:

I agree with Kidd AJA, for the reasons that his Honour gives, by reference to Veen v The Queen (No 2)[1] and R v Engert[2] that leave to appeal should be granted, but that the appeal should be dismissed.
[1](1988) 164 CLR 465.
[2](1995) 84 A Crim R 67.

I would only add that, given the objective violence and combined impact upon the victim of the offences comprised in the applicant’s conduct, a total effective sentence of seven years’ imprisonment with a non-parole period of five years was well within the sentencing range reasonably open to the sentencing judge, but for the applicant’s delusional mental illness.

In turn, that illness did not require a lesser sentence for the reasons that protection of the community justified a significant period of detention, and, despite moderation of the significance of general and specific deterrence as sentencing factors, those factors also supported this conclusion. Each factor has work to do in respect of persons whose capacity to engage in rational consequential thinking is critically dependent upon maintaining psychotropic medication.[3] In my opinion, the Court Secure Treatment Order imposed by the sentencing judge was not manifestly excessive.

[3]Wrightv The Queen [2015] VSCA 333 [56]–[58], [67].

PRIEST JA:

Substantially for the reasons given by Kidd JA, I agree that leave to appeal should be granted, but the appeal dismissed. I also agree with the further observations made by Osborn JA.

KIDD AJA:

On 11 February 2016, the applicant (born 20 January 1974 and now aged 43) was convicted of a set of offences arising from an incident in May 2015 in which he forced his way into his former partner’s home, attacked her and threatened to kill her. He also threatened to kill himself. He was sentenced, on 21 April 2016, as follows:

Charge

Offence

Maximum

Sentence

1

Aggravated burglary (s 77(1) of the Crimes Act)[4]

25 y

Muhittin Guven be made subject…

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.

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Details

Case: [2017] VSCA 92
Decision Date: 2 May 2017

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant, Muhittin Guven, against his sentence following a conviction for aggravated burglary and associated offences. The victim was the appellant's estranged wife. The appellant had been diagnosed with schizophrenia. The court was tasked with determining whether the sentence imposed was manifestly excessive and whether the principles enunciated in Verdins were adequately considered. The overarching consideration was the need to balance the protection of the community with the appellant's mental health needs.

The legal issues the court had to address included whether the sentence imposed was manifestly excessive, and whether the principles from Verdins had been properly applied. The court needed to consider the severity of the crimes committed, the appellant's mental health condition, and the need to protect the community. The court also had to weigh these factors against the appellant's personal circumstances and the appropriate sentence under the Sentencing Act 1991.

The court held that there was no error in the original sentencing decision. It found that the sentence was not manifestly excessive and that the Verdins principles had been appropriately considered. The court emphasised the importance of protecting the community and the need to balance this with the appellant's mental health needs. The court concluded that the sentence was proportionate to the severity of the offences and the need for community protection. Accordingly, the appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed. The Court Secure Treatment Order for a period of seven years was upheld. The appellant would continue to receive treatment for his schizophrenia while being detained, which was considered the most appropriate way to protect the community and address the appellant’s mental health needs.

Orders