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…
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- AGLC
- Tokay v The Queen [2014] VSCA 172
- Case
- [2014] VSCA 172
- Decision Date
CaseChat Overview and Summary
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.
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Evidence
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