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Sutic v The Queen

Sutic v The Queen

Case [2018] VSCA 246 27 September 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0262

JAKOB SUTIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2018
DATE OF JUDGMENT:	27 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 246
JUDGMENT APPEALED FROM:	DPP v Sutic [2016] VCC 1936 (Judge Tinney)

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CRIMINAL LAW – Two charges of negligently causing serious injury and two charges of reckless conduct endangering serious injury – Total effective sentence of 4 years, 9 months’ imprisonment.

CRIMINAL PROCEDURE – Application for extension of time to file application for leave to appeal against sentence – Delay of 11 months – Applicant under mistaken belief that he had signed documents which preserved his appeal rights – Legal advice sought promptly after sentence – New solicitors engaged and Legal Aid funding sought – Significant parts of delay not attributable to applicant – Application for extension of time granted.

CRIMINAL LAW – Application for leave to appeal against sentence – Whether judge mischaracterised objective gravity of negligently causing serious injury offences – Whether judge erred in adopting incremental approach to upward adjustment of current sentencing practices – Whether judge doubly punished applicant – Whether sentence of 3 years, 2 months’ imprisonment for first negligently causing serious injury charge and orders for cumulation manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Valos Black & Associates
For the Respondent	Ms E Ruddle	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
KAYE JA:

Introduction and summary

The applicant pleaded guilty to the charges set out in the table below and, on 9 December 2016, he was sentenced as set out in that table:[1]
[1]DPP v Sutic [2016] VCC 1936 (‘Sentencing remarks’).

Charge on indictment
Charge	Offence	Maximum	Sentence	Cumulation
1	Negligently causing serious injury [Crimes Act 1958 s 24]	10 years	3 years, 2 months	Base
2	Negligently causing serious injury	10 years	2 years, 4 months	1 year, 1 month
3	Reckless conduct endangering serious injury [Crimes Act s 23]	5 years	1 year, 3 months	3 months
4	Reckless conduct endangering serious injury	5 years	1 year, 3 months	3 months
Related summary charge
8	Driving a motor vehicle while prescribed concentration of drugs present [Road Safety Act 1986 s 49(1)(bb)]	12 penalty units	Fine of $600	-
Total Effective Sentence: 4 years, 9 months’ imprisonment
Non-Parole Period: 2 years, 5 months
Pre-Sentence Detention Declaration: 10 days
6AAA Statement: 7 years’ imprisonment with non-parole period of 5 years
Other relevant orders: Licence disqualification ending 2 years after release from custody; compensation order for $3,000 in favour of Kira Betchley

The charges arose out of an incident which occurred on 1 November 2015. On that day, while the applicant was under the influence of methylamphetamine and MDMA, he drove his Toyota Hilux utility across double white lines and in the wrong lane of a dual carriageway road, causing an off-set head-on collision with a…

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 Sutic v The Queen

Details

AGLC: Sutic v The Queen [2018] VSCA 246
Case: [2018] VSCA 246
Decision Date: 27 September 2018

CaseChat Overview and Summary

The appellant, Mr Sutic, was convicted of two charges of negligently causing serious injury and two charges of reckless conduct endangering serious injury. He was sentenced to a total effective term of imprisonment of 4 years, 9 months. Mr Sutic applied for an extension of time to file an application for leave to appeal against his sentence, arguing that there was an 11-month delay due to him being under the mistaken belief that he had signed documents that preserved his appeal rights. He sought legal advice promptly after his sentence, engaged new solicitors, and applied for Legal Aid funding. The application for an extension of time was granted as significant parts of the delay were not attributable to Mr Sutic.

The court had to decide whether Mr Sutic's application for an extension of time should be granted and if the application for leave to appeal against his sentence should be refused. The court examined whether the trial judge mischaracterised the objective gravity of the negligently causing serious injury offences and whether the judge erred in adopting an incremental approach to upward adjustment of current sentencing practices. The court also considered whether the judge doubly punished Mr Sutic and whether the sentence of 3 years, 2 months’ imprisonment for the first negligently causing serious injury charge and orders for cumulation were manifestly excessive.

The court found that the trial judge did not mischaracterise the objective gravity of the offences and did not err in adopting an incremental approach to sentencing. The court also found that Mr Sutic was not doubly punished and that the sentence was not manifestly excessive. Therefore, the application for leave to appeal against the sentence was refused. The application for an extension of time to file the application for leave to appeal was granted as significant parts of the delay were not attributable to Mr Sutic.

No further orders were made.

Orders