Serdar Atesok v The Queen - [2018] VSCA 22

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0223

SERDAR ATESOK	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	15 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 22
JUDGMENT APPEALED FROM:	[2017] VSC 599 (Lasry J)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Unlawful and dangerous act manslaughter, theft of a motor vehicle and arson – ‘Drive-by’ shooting – Plea of guilty – Total effective sentence of 12 years’ imprisonment – Non-parole period of nine years – Manifest excess – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Turnbull Lawyers
For the Crown	No appearance	John Cain, Solicitor for Public Prosecutions

TATE JA:

This is an application by Serdar Atesok (‘Atesok’) for leave to appeal against sentence imposed on him by a judge of the Supreme Court following his guilty plea to one charge of manslaughter, one charge of theft of a motor vehicle, and one charge of arson. He was sentenced on 28 September 2017 as follows:[1]
[1]R v Atesok [2017] VSC 599 (‘Sentencing reasons’).

Charge No

Offence

Maximum

Sentence

Cumulation

1.     Theft of a motor vehicle – s 72 Crimes Act 1958 10 years – s 74 Crimes Act 1958 12 months 6 months

2.
Manslaughter – Common Law Crimes Act 1958
20 years – s 5 Crimes Act 1958 11 years Base

3.     Arson – s 197(1) Crimes Act 1958 10 years 18 months 6 months

Total Effective Sentence: 12 years

Non-Parole Period: 9 years

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 534 days

S6AAA Statement: 15 years, NPP 12 years

Other relevant orders: Disposal Order, Forensic Sample Order and an order pursuant s 89(4) Sentencing Act 1991 disqualifying the prisoner from holding a driver licence for 12 months commencing upon the date the prisoner becomes eligible for release on parole.

Charge No	Offence	Maximum	Sentence	Cumulation
1.	Theft of a motor vehicle – s 72 Crimes Act 1958	10 years – s 74 Crimes Act 1958	12 months	6 months
2.	Manslaughter – Common Law Crimes Act 1958	20 years – s 5 Crimes Act 1958	11 years	Base
3.	Arson – s 197(1) Crimes Act 1958	10 years	18 months	6 months
Total Effective Sentence:	12 years
Non-Parole Period:	9 years
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:	534 days
S6AAA Statement: 15 years, NPP 12 years
Other relevant orders: Disposal Order, Forensic Sample Order and an order pursuant s 89(4) Sentencing Act 1991 disqualifying the prisoner from holding a driver licence for 12 months commencing upon the date the prisoner becomes eligible for release on parole.

Atesok seeks leave to appeal on the following ground:

Ground One
The sentences imposed on the charge of manslaughter and the orders for cumulation, non-parole period and total effective sentence:
(i) are manifestly excessive; and
(ii)outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(iii)resulted in a total effective sentence and non-parole period that was manifestly excessive and in breach of the principle of totality.

For the reasons that follow, I would refuse leave to appeal.

Circumstances of the offending

On the afternoon of 31 December 2015, Atesok shot the victim, Nathan Knight (‘Knight’), from a moving vehicle. The car was stolen. The single shot fired by Atesok led to the bullet striking Knight in the left eye and penetrating his skull and brain. The victim died a short time later at Royal Melbourne Hospital. At the time Atesok was on…

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 Serdar Atesok v The Queen

Details

AGLC: Serdar Atesok v The Queen [2018] VSCA 22
Case: [2018] VSCA 22
Decision Date: 15 February 2018

CaseChat Overview and Summary

The case of Serdar Atesok v The Queen involved the applicant, Serdar Atesok, who pleaded guilty to a series of serious criminal offences, including unlawful and dangerous act manslaughter, theft of a motor vehicle, and arson. The events leading to these charges involved a 'drive-by' shooting that resulted in the death of an individual. Atesok was sentenced to a total effective term of imprisonment of 12 years, with a non-parole period of nine years. He subsequently sought leave to appeal against his sentence, arguing that it was manifestly excessive. The application was heard in the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive, thereby warranting an appeal. The court needed to consider the principles of sentencing in the context of the severity and circumstances of the crimes committed. This involved examining the nature and degree of culpability, the need for deterrence and retribution, and whether the sentence could be justified under the circumstances.

The court analysed the evidence and submissions made by both parties, taking into account the principles of proportionality and the role of sentencing in the broader criminal justice system. In its decision, the court determined that the sentence was not manifestly excessive. The reasoning included an assessment of the severity of the crimes, the culpability of the offender, and the need for the sentence to reflect the gravity of the acts committed. The court found that the sentence was proportionate to the crimes and did not constitute a manifest excess.

As a result of this determination, the High Court refused the application for leave to appeal. The original sentence of 12 years' imprisonment with a non-parole period of nine years was upheld. The court's decision emphasised the importance of ensuring that sentences reflect the seriousness of the offences while also considering the principles of justice and proportionality.

Orders