R v Kursunlu - [2001] VSCA 240

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 246 of 2001

THE QUEEN
	v.
TAYLAN KURSUNLU

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JUDGES:	WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 December 2001
DATE OF JUDGMENT:	11 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 240

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Criminal law - Sentence - Reckless conduct endangering a person - Driving motor vehicle - Importance of general deterrence - Good character of appellant - Imprisonment appropriate - Cumulation - Separate acts in course of one transaction

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.R. Simon	McDonald Slater & Lay

BUCHANAN, J.A.:

On 21 September 2001 after a trial in the County Court the appellant was found guilty of three counts of reckless conduct endangering a person (counts 2, 3 and 4) and not guilty of one count of causing death by culpable driving of a motor vehicle (count 1). After a plea in mitigation the appellant was sentenced to be imprisoned for a period of 12 months on each count. It was ordered that six months of the sentence on count 4 was to be served cumulatively upon the sentence imposed in respect of count 3, producing a total effective term of 18 months' imprisonment. A minimum of six months' imprisonment was fixed before the appellant was to be eligible for parole. In addition the appellant's driving licence was cancelled and it was ordered that he not obtain another licence for a period of 18 months.

The appellant has been granted leave to appeal against the sentence. In addition to a contention that the sentence is manifestly excessive, the grounds of appeal are that the sentencing judge took into account facts which did not relate to the counts in respect of which the appellant was convicted, erred in cumulating the sentences imposed in respect of two counts where the acts constituting the events were the same, failed to give any or any sufficient weight to a number of mitigating factors and erred in ordering the incarceration of the appellant when the purposes of sentencing could have been achieved without his confinement.

The appellant is aged 22 years and was aged 19 years when the offences were committed. As is often the case when crimes such as these are being considered, the offender has no prior convictions and is otherwise a fine member of the community. The sentencing judge described him as "a perfectly decent, hard-working young man who has never been in trouble with the law". The appellant's parents were separated and the appellant lives with and supports his mother, who is unable to work because of an injury she suffered at work.

The offences took place in the afternoon of Saturday 13 February 1999. The appellant and his friend Gokmen Killi left the Fountain Gate Shopping Centre to drive to Pakenham. The appellant drove a Ford sedan and was accompanied by his brother. Killi drove a Honda sports…

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 R v Kursunlu

Details

AGLC: R v Kursunlu [2001] VSCA 240
Case: [2001] VSCA 240
Decision Date: 11 December 2001

CaseChat Overview and Summary

In the case of R v Kursunlu, the appellant was charged with driving a motor vehicle in a manner that recklessly endangered the lives of two pedestrians. The matter was heard in the Supreme Court of Victoria, where the appellant sought to challenge the severity of the sentence imposed by the County Court. The appellant's primary contention was that the sentence was excessive and did not adequately take into account his otherwise good character and the fact that the incidents were part of a single course of reckless driving.

The legal issues before the court centred on the appropriate sentence for the appellant's conduct, which involved two separate acts of reckless driving that resulted in significant risk to the lives of pedestrians. The court was required to balance the principles of general deterrence against the appellant's otherwise good character and the cumulative nature of the offences, which occurred in a single course of driving. The court also needed to consider whether the sentence imposed was proportionate and whether it was appropriate to impose separate sentences for each act of reckless driving.

The court determined that the sentence imposed was appropriate, given the seriousness of the appellant's conduct and the need to ensure general deterrence. While acknowledging the appellant's otherwise good character, the court held that the risk posed to the pedestrians was significant, and the need to deter such conduct outweighed the mitigating factors. The court further held that the offences were separate acts that could be cumulatively considered in the sentencing process, as they occurred in the course of one transaction. The appeal was dismissed, and the original sentence was upheld.

Orders