SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0060
| BORIS TOKAY |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
---
| 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
---
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
---
| 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…
Continue reading Tokay v The Queen
Sign in free to access the full text
- AGLC
- Tokay v The Queen [2014] VSCA 285
- Case
- [2014] VSCA 285
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.