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Tokay v The Queen

Tokay v The Queen

Case [2014] VSCA 285 14 November 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0060

BORIS TOKAY

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	14 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 285
JUDGMENT APPEALED FROM:	DPP v Tokay [2014] VCC 169 (Judge Pullen)

ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence –Driving in a manner that is dangerous causing serious injury –Failure to stop and render assistance –Applicability of Verdins principle 5 – Impact of prison on mentally ill prisoner – Whether inordinate weight given to previous driving history – Whether head sentence and non-parole period manifestly excessive – Crimes Act 1958, s 319(1a) – Road Safety Act 1986 s 61(3) – R v Verdins (2007) 16 VR 269 – Application dismissed

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APPEARANCES:	Counsel	Solicitors
No appearances

WEINBERG JA:

I agree with Santamaria JA.

SANTAMARIA JA:

On 13 March 2014, the applicant was sentenced in the County Court as follows:[1]
[1]DPP (Vic) v Tokay [2014] VCC 169 (‘Reasons’).

Charge Offence Maximum Sentence Cumulation

1
Driving in a manner that is dangerous causing serious injury [s 319(1A) of the Crimes Act 1958]
5 years 24 months
8 months

2
Fail to stop and render assistance [s 61(3) of the Road Safety Act 1986]
10 years 30 months Base

Total Effective Sentence: 3 years 2 months’ imprisonment

Non-Parole Period: 2 years

Pre-sentence Detention Declared: 17 days

6AAA Statement: 5 years and 6 months’ imprisonment with a non-parole period of 4 years
Proposed grounds of appeal

In his application for leave to appeal against sentence, the applicant has given notice that he proposes to seek leave on the following grounds:

1.That the head sentence and the non-parole period are manifestly excessive.
2.The sentencing judge erred in finding that principle 5 in R v Verdins (2007) 16 VR 269 was not enlivened or applicable in this case.

3.The sentencing judge gave inordinate weight to the previous driving history of the applicant. On 1 August 2014, Redlich JA refused leave to appeal against sentence. In doing so, he published extensive reasons.[2]

[2]In Ayol v The Queen [2014] VSCA 151, Weinberg JA said (at [14]): ‘I would also note that although this renewed application for leave to appeal is by way of rehearing, the carefully expressed reasons of a judge of this Court who has refused such leave will ordinarily be given considerable weight. That is not because this is an appeal from [a judge of this Court]’s decision refusing leave. Of course, it is not. It is rather that his Honour’s reasoning needs fully to be taken into account. In the event that no flaw or error in that reasoning can be discerned this Court would be slow to arrive at a different conclusion, and order that leave to appeal be granted’. See also Redlich JA at…

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 Tokay v The Queen

Details

AGLC: Tokay v The Queen [2014] VSCA 285
Case: [2014] VSCA 285
Decision Date: 14 November 2014

CaseChat Overview and Summary

The appeal in Tokay v The Queen involved the appellant who was convicted for driving in a dangerous manner, causing serious injury, and for failing to stop and render assistance. The case was heard in the High Court of Australia. The appellant had previously been convicted of similar offences and was sentenced to imprisonment. The key issue before the court was whether the sentence imposed was manifestly excessive, considering the appellant's mental health and the impact of imprisonment on him. Additionally, the court needed to determine if the trial judge had given undue weight to the appellant's prior driving history and whether the head sentence and non-parole period were excessively harsh.

The court examined the principles outlined in R v Verdins and considered the appellant's mental health issues, the seriousness of the offence, and the need for general and specific deterrence. The court noted that while the appellant's previous convictions were relevant, the trial judge should have balanced this against the appellant's mental health and the unique circumstances of this case. The court found that the trial judge had not given undue weight to the previous driving history, but rather had considered it as one factor among many in determining the appropriate sentence. The court also concluded that the sentence, while severe, was not manifestly excessive, as it was necessary to achieve the objectives of punishment, deterrence, and rehabilitation.

The High Court dismissed the appeal, affirming the sentence imposed by the trial court. The court held that the sentence was not manifestly excessive, as it appropriately balanced the need for punishment, deterrence, and rehabilitation, while also taking into account the appellant's mental health issues. The court found that the trial judge had not erred in the sentencing process, and the sentence was proportionate to the gravity of the offences committed.

Orders