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Tokay v The Queen

Tokay v The Queen

Case [2014] VSCA 172 1 August 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0060

BARIS TOKAY
	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGE:	REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 July 2014
DATE OF JUDGMENT:	1 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 172
JUDGMENT APPEALED FROM:	[2014] VCC 169 (13 March 2014)

DETERMINED ON THE PAPERS

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CRIMINAL LAW – Sentence – Dangerous driving causing serious injury contrary to Crimes Act 1958 (Vic) s 319(1A) – Manifest excess – Application of Verdins principle 5 – Reliability of psychological material tendered on plea – Applicant ‘moderately deceptive’ according to Paulhus Deception Scales – O’Connor v The Queen [2014] VSCA 108, R v Zander [2009] VSCA 10 applied – Applicant’s driving history – Whether reduction in mitigatory effect of youth and prospects of rehabilitation – Error not material – Failure to stop contrary to Road Safety Act 1986 (Vic) s 61(3) – Objective seriousness of failure to stop informed by a reasonable person’s perception of the extent of the injuries caused – Applicant saw motorcyclist thrown from his motorcycle and land in the road – Not reasonably arguable that a sentence of 30 months’ imprisonment manifestly excessive – Wassef v The Queen [2011] VSCA 30, R v Harding (2008) 50 MVR 413 cited – Leave to appeal refused.

NO APPEARANCES BY LEAVE OF THE COURT	Counsel	Solicitors
For the Applicant	Slink & Keating Solicitors
For the Crown	Mr C Hyland Solicitor for Public Prosecutions

REDLICH JA:

The applicant seeks leave to appeal against his sentences on one count of dangerous driving causing serious injury,[1] and one count of failing to stop and render assistance.[2] Following a plea of guilty, the applicant was sentenced to two years’ imprisonment on the dangerous driving charge, and 30 months’ imprisonment on the fail to stop charge, with eight months of the former cumulated on the latter. The total effective sentence was therefore three years, two months’ imprisonment. A non-parole period of two years was fixed.
[1]Contrary to s 319(1A) of the Crimes Act 1958 (Vic).
[2]Contrary to s 61(3) of the Road Safety Act 1986 (Vic).

The applicant’s grounds of appeal are, in brief, that the head sentence and non-parole period are manifestly excessive; that the sentencing judge erred in finding that principle 5 of Verdins was not enlivened or applicable; and that the sentencing judge gave inordinate weight to the applicant’s driving history.

Factual background

On Friday 30 November 2012 at around 9:50 pm, the victim was riding his motorcycle in a westerly direction along the Princes Highway in Dandenong, approaching the intersection with the South Gippsland Highway. The applicant was driving his car in a northerly direction along the South Gippsland Highway, approaching the Princes Highway intersection.

The applicant approached the intersection intending to turn right as the traffic signals were changing from green to red. The…

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 172
Case: [2014] VSCA 172
Decision Date: 1 August 2014

CaseChat Overview and Summary

In this case, Barış Tokay, the applicant, has applied for leave to appeal against his sentences for dangerous driving causing serious injury and for failing to stop and render assistance. The applicant was sentenced to a total of three years and two months imprisonment, with a non-parole period of two years. The applicant contends that the sentences are manifestly excessive, that the sentencing judge erred in not applying Verdins principle 5, and that the sentencing judge gave inordinate weight to the applicant's driving history.

The court found that the applicant's argument that the sentencing judge erred in not applying Verdins principle 5 was not reasonably arguable. The court found that the evidence was not sufficient to satisfy the sentencing judge that the applicant's mental condition would make time served more difficult. Furthermore, the sentencing judge had legitimate concerns about the reliability of the psychologist's and neuropsychologist's reports. The court also found that the sentencing judge did not give inordinate weight to the applicant's previous driving history. Although the applicant's driving history was concerning, it did not warrant a significant diminution of the mitigatory effect of the applicant's youth or prospects of rehabilitation.

Finally, the court found that the sentences were not manifestly excessive. The sentence for the fail to stop charge represented forty per cent of the maximum penalty prescribed by Parliament for that offence. The applicant's failure to stop after the collision represented a significant failure to discharge his obligations to his fellow road-users, and the sentence imposed for the dangerous driving charge represented a serious breach of the proper conduct of a vehicle upon the roadway.

Therefore, the application for leave to appeal against sentence is refused. The court finds that there is no reasonable prospect that the Court of Appeal would impose less severe individual sentences or reduce the total effective sentence.

Orders