R. v. Yalim - [2000] VSCA 64

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 196 of 1999

THE QUEEN

DEMIR YALIM

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JUDGES:	TADGELL and CHERNOV, JJ.A. and HEDIGAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2000
DATE OF JUDGMENT:	12 April 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 64

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Sentence – Appellant sentenced to six years' imprisonment, three-year minimum on two counts of culpable driving causing death – Appeal against sentence as manifestly excessive – Principles – Sentences not excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr G. Wendler	Keith W. Allan & Assoc.

TADGELL, J.A.:

I will invite Hedigan, A.J.A. to deliver the first judgment.

HEDIGAN, A.J.A.:

This is an appeal by the appellant Yalim against a sentence imposed by the County Court of Victoria on 27 August 1999. The appellant is a 39-year-old man who was charged on two counts of culpable driving causing death pursuant to s.318 of the Crimes Act 1958. He pleaded guilty to both counts. There was another charge under s.49(1)(g) of the Road Safety Act 1986 of exceeding the prescribed concentration of alcohol in the blood within three hours of the driving. This was dealt with as a summary offence and it is not necessary to refer to it further, save as to the licence disqualification. However, as the particulars to each count of culpable driving causing death indicate, the allegation was that consumption of alcohol by the appellant was a potent cause of his deadly driving of his motor car on the night in question. It was thus also a major significant cause of the tragic deaths of his wife and child which ensued.

The events which led to the serious charges against the appellant were summarised by the County Court sentencing judge in the course of hearing the plea made on behalf of the appellant after he had pleaded guilty to the three charges made against him. Neither counsel appearing at that time disagreed with the summary, which was to the following effect. It is to be treated as a summary of the facts on which the sentence was given and which this Court re-evaluates on appeal.

On 24 July 1998 the appellant, his wife and their two children - a boy aged twelve and a daughter aged four - had attended as guests at a Turkish wedding. They were returning to their home at about 11 p.m. in the appellant's motor vehicle. The weather conditions were fine and dry. The vehicle was being driven in Cooper Street, Epping, where the applicable speed limit was 80 kilometres per hour. The depositions of witnesses were to the effect that the appellant was driving his vehicle on the incorrect side of the road, which had double white lines, for some distance. He overtook another vehicle which was travelling at about 80 kilometres per hour and crossed the double white lines, and then, apparently, when returning to the correct side of…

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. Yalim

Details

AGLC: R. v. Yalim [2000] VSCA 64
Case: [2000] VSCA 64
Decision Date: 12 April 2000

CaseChat Overview and Summary

The appellant, Yalim, was convicted of two counts of culpable driving causing death and sentenced to six years' imprisonment, with a non-parole period of three years on each count, to run concurrently. Yalim appealed against the sentence, arguing it was manifestly excessive. The appeal was heard in the High Court of Australia. The central legal issue was whether the sentence imposed by the trial court was manifestly excessive in light of the principles governing sentencing for culpable driving causing death.

The court examined the principles of sentencing, particularly focusing on the gravity of the offence and the need for deterrence and denunciation. It considered the appellant's background, the circumstances of the offence, and the need to balance the punishment with the principles of proportionality and justice. The court held that the sentence was not manifestly excessive, as it appropriately reflected the severity of the crime and the need to uphold public confidence in the justice system. The court also noted that the sentence was within the range typically imposed for such offences, and the trial judge had adequately considered all relevant factors.

The appeal was dismissed, and the original sentence was upheld. The High Court determined that the trial judge had correctly applied the principles of sentencing and that the sentence was not manifestly excessive. The court's decision emphasised the importance of maintaining a consistent approach to sentencing in cases of culpable driving causing death, ensuring that sentences reflect the gravity of the offence while also considering individual circumstances.

Orders