R v Selcuk - [2007] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 404 of 2006

THE QUEEN
	v.
ASIM SELCUK

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JUDGES:	MAXWELL P, ASHLEY AND NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2007
DATE OF JUDGMENT:	29 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 143

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Sentencing – Intentionally causing serious injury – Vicious unprovoked attack with a baseball bat on the appellant's 61 year old uncle – Appellant aided and abetted his brother who was the principal offender – No pre-planning or physical involvement by the appellant – Appellant sentenced to three years’ imprisonment with a non-parole period of one year – Whether trial judge erred in characterisation of the appellant’s role – Whether sentence manifestly excessive given the appellant’s role – Admissibility and effect of fresh evidence of terminal illness and death of father – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Robert Stary & Associates

MAXWELL P:

I would dismiss the appeal. Subject to what follows, I would do so for the reasons given by Neave JA, whose draft judgment I have had the advantage of reading.

As her Honour explains, ground 1 concerned the sentencing Judge’s reference to the appellant having driven his brother to the site of the attack. There was debate on the appeal as to whether this reference betrayed an erroneous view of the conduct for which the appellant was being sentenced. Whatever construction might be placed on the particular words used, the question of substance is whether the Judge misapprehended the nature and extent of the appellant’s offending. Having read the full transcript of the argument on the plea, and having regard to the full reasons for sentence, I see no basis for the contention that her Honour made any such error.

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Neave JA. Like her Honour, but for different reasons, I would dismiss the appeal.

On the footing that, by the Crown’s concession, the appellant fell to be sentenced as an aider and abettor, I agree with Neave JA that the jury verdict reflected its satisfaction that the appellant either encouraged the attack upon his uncle, or assented to or concurred in it – doing so by getting out of the car and standing by whilst the victim was subjected to a prolonged attack, and by holding himself in readiness to drive his brother away when the attack was over.

It is in that context that regard must be had to this observation by the learned sentencing judge:

“. . . you did nothing to try to stop the attack or assist the victim, you assisted your brother by driving him to and from the site and you lied to the police about your involvement.”

Unlike Neave JA, I cannot accept that the reference to the appellant driving the brother to the scene of the attack…

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 Selcuk

Details

AGLC: R v Selcuk [2007] VSCA 143
Case: [2007] VSCA 143
Decision Date: 29 June 2007

CaseChat Overview and Summary

The appellant, Selcuk, was convicted of intentionally causing serious injury to his 61-year-old uncle. The attack occurred when Selcuk assisted his brother, the principal offender, who used a baseball bat in a vicious and unprovoked assault. Selcuk did not pre-plan the attack nor did he physically participate in it. Following his conviction, Selcuk was sentenced to three years’ imprisonment with a non-parole period of one year. Selcuk appealed against both his conviction and sentence, arguing that the trial judge had erred in characterising his role in the offence and that the sentence was manifestly excessive given his limited involvement. He also sought to introduce fresh evidence regarding the terminal illness and subsequent death of his father, which he claimed should have been taken into account at sentencing.

The legal issues before the court were whether the trial judge had correctly characterised the appellant's role in the offence, whether the sentence was manifestly excessive, and whether the trial judge had erred in excluding the fresh evidence regarding the appellant's father. The court considered the nature and extent of Selcuk's involvement, the principles of sentencing for aiding and abetting, and the appropriate weight to be given to the fresh evidence. The court determined that the trial judge's characterisation of Selcuk's role was accurate, and that the sentence was not manifestly excessive given the seriousness of the offence and Selcuk's involvement. The fresh evidence concerning the appellant's father was deemed inadmissible as it did not directly relate to the offence or the appellant's culpability.

In dismissing the appeal, the court held that the trial judge had correctly assessed Selcuk's role and that the sentence was proportionate to the appellant's involvement in the offence. The fresh evidence was considered irrelevant to the sentencing process, and therefore its exclusion did not constitute an error. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of considering the principles of justice and proportionality in sentencing, particularly in cases involving aiding and abetting.

Orders