JUDGES:	MAXWELL P and KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 August 2015
DATE OF JUDGMENT:	11 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 236
JUDGMENT APPEALED FROM:	DPP v Sarikaya (Unreported, County Court of Victoria, Judge Parsons, 9 May 2015)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death, failure to stop after accident, failure to render assistance – Sentence of 4y for failure to stop – Total effective sentence 5y, non-parole period 3y 6m – Whether manifestly excessive – Victim elderly pedestrian – Knocked down when applicant reversed – Applicant drove off – Attempt to conceal involvement – High culpability – Verdins propositions 5 and 6 – Moderate mitigation only – Sentence within range – Appeal dismissed – Wassef v The Queen [2011] VSCA 30 followed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Cass	Victoria Legal Aid
For the Crown	Mr P B Kidd SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
KAYE JA:

The appellant was convicted, following a trial, of dangerous driving causing death, failing to stop after an accident, and failing to render assistance after an accident. Following a plea hearing conducted on 3 April and 8 May 2014, he was sentenced on 9 May 2014 as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1

Dangerous driving causing death

10 y

2 y

12 m

2

Failure to stop after an accident

10 y

4 y

Base

3

Failure to render assistance after an accident

10 y

9 m

Total Effective Sentence:

5 y

Non-Parole Period:

3 y 6 m

Pre-sentence Detention Declared:

91 days

Other orders: Licence Cancelled and Disqualified for 3 years from 9 May 2014

On 23 June 2015, Weinberg JA granted leave to appeal on the ground that

The individual sentences, degree of cumulation and the non-parole period imposed on the appellant are manifestly excessive in particular having regard to:
(a) the mental health of the appellant;
(b)the individual sentences on charges 1 and 3, which reflect an over weighting of the seriousness of the offending;
(c)cumulation imposed on charge 1 — in light of the principle of totality; and

(d) current sentencing practices for failing to stop after an accident.

Circumstances of the offending

On the morning of 23 September 2011, the appellant reversed his motor vehicle out of a driveway in St Georges Road, Shepparton. In doing so, his vehicle struck an 89 year old female pedestrian, Gemma Bell, who was walking on the footpath supported by a walking frame. The impact of the collision caused Ms Bell to fall to the pavement, and to thereby suffer a severe head injury. The appellant was convicted on count 1, dangerous driving causing death, on the basis that he had failed to keep a proper lookout while reversing his vehicle onto the roadway. Immediately after the collision, the appellant drove…

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 Sarikaya v The Queen

Details

AGLC: Sarikaya v The Queen [2015] VSCA 236
Case: [2015] VSCA 236
Decision Date: 11 September 2015

CaseChat Overview and Summary

In Sarikaya v The Queen, the respondent appealed against a sentence imposed for offences of dangerous driving causing death, failure to stop after an accident, and failure to render assistance. The Court of Appeal considered the sentence's proportionality and appropriateness in light of the severe consequences of the applicant's actions. The applicant had reversed his car, striking an elderly pedestrian who later died. After the collision, the applicant drove off and attempted to conceal his involvement, actions that highlighted a high level of culpability.

The legal issues before the court involved assessing whether the sentence was manifestly excessive, given the moderate mitigation offered. The court applied the Verdins propositions, considering the culpability of the applicant and the impact on the victim. The court also examined the totality of the sentences imposed, which resulted in a total effective sentence of five years, with a non-parole period of three years and six months. The court found that while the sentence was severe, it was within the range of appropriate sentences for such offences, taking into account the culpability and the attempt to conceal the incident.

The Court of Appeal found that the sentence was not manifestly excessive. The high culpability of the applicant, as evidenced by his attempt to flee the scene and the victim's vulnerability, justified the severity of the sentence. The court followed the principles established in Wassef v The Queen, affirming that the sentence was proportionate to the gravity of the offence. The appeal was dismissed, confirming the trial judge's assessment of the appropriate sentence.

Orders