Younis v The King - [2024] VSCA 64

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0149

MARVIN YOUNIS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, BEACH and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2024
DATE OF JUDGMENT:	11 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 64
JUDGMENT APPEALED FROM:	DPP v Younis [2023] VCC 1173 (Judge Carlin)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Driving at excessive speed into an intersection against a red light – Collision with vehicle also driving at excessive speed – Whether sentencing judge erred when assessing the moral culpability of the applicant and other driver – Whether principle of parity infringed – Leave to appeal refused.

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Counsel
Applicant:		Mr G Chipkin
Respondent:		Mr J O’Connor
Solicitors
Applicant:	Farrelly Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
BOYCE JA:

Introduction

Aitken Boulevard, oriented north-south, and James Mirams Drive, oriented east-west, in the northern Melbourne suburb of Greenvale, intersect. The intersection is regulated by traffic lights.
At about 2.03 am on Sunday, 25 November 2018, the applicant, then aged 25 years,[1] driving a 2008 Mitsubishi Lancer VRX sedan south on Aitken Boulevard, entered the intersection at excessive speed against a red light. A 2010 Volkswagen Golf GTI being driven west, in excess of the speed limit, by Jayson Ziro (for convenience, ‘Ziro’), then aged 18 years, collided with the passenger side of the applicant’s vehicle, at a point near the centre of the intersection. Jack Baho, aged 20 years, seated in the front passenger seat of the applicant’s vehicle, sustained a cervical spine injury from which he died.
[1]His date of birth is 25 November 1993.
On 26 September 2022, the applicant, by then aged 30, pleaded guilty in the County Court to a charge of dangerous driving causing the death of Jack Baho.[2] Following a plea hearing on 5 July 2023, the judge sentenced the applicant on 7 July 2023 to one year and 10 months’ imprisonment, with a non-parole period of 11 months.[3] The judge also cancelled the applicant’s driver’s licence for two years and six months from 7 July 2023.
[2]Crimes Act 1958, s 319(1). The maximum penalty is 10 years’ imprisonment.
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the applicant to four years’ imprisonment with a non-parole period of three years.
Ziro had earlier pleaded guilty to a charge of dangerous driving causing death before the same judge on 9 March 2021. On 19 August 2021, the judge imposed a sentence of two years and two months’ imprisonment upon Ziro (that is, four months longer than the applicant’s head sentence) with a non-parole period of one year and two months (three months longer than the applicant’s non-parole period).[4] The judge also cancelled Ziro’s driver’s licence for two years from 19 August 2021.
[4]In Ziro’s case, the s 6AAA declaration was also four…

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 Younis v The King

Details

AGLC: Younis v The King [2024] VSCA 64
Case: [2024] VSCA 64
Decision Date: 11 April 2024

CaseChat Overview and Summary

The case of Younis v The King involved an appeal against sentence in relation to an incident of dangerous driving that resulted in death. The applicant, Younis, was convicted of causing death by dangerous driving. The circumstances involved Younis driving at excessive speed into an intersection against a red light and colliding with another vehicle, which was also travelling at excessive speed. The court was tasked with determining whether the sentencing judge had erred in assessing the moral culpability of both the applicant and the other driver, and whether the principle of parity was infringed in the sentencing process.

The primary legal issue before the court was whether the sentencing judge had erred in assessing the moral culpability of both parties involved in the incident. The court considered whether it was appropriate to compare the culpability of the applicant with the culpability of the other driver, given that both were equally at fault for the dangerous driving that led to the fatal collision. The applicant argued that the sentencing judge had not adequately considered the principle of parity in sentencing. This principle requires that similarly situated offenders be treated similarly, and the applicant contended that the judge's approach to assessing culpability did not adhere to this principle.

The court found that the sentencing judge had correctly assessed the moral culpability of both the applicant and the other driver. It was determined that the judge had appropriately considered the circumstances of the incident and the culpability of each party. The court held that while the principle of parity is important, it does not require identical sentences for similarly situated offenders. Instead, it allows for differentiation based on individual circumstances. The court was satisfied that the judge had taken into account all relevant factors in arriving at the sentence and had not erred in the assessment of culpability. Consequently, the appeal was dismissed, and leave to appeal was refused.

No specific final orders were made beyond the refusal of leave to appeal and the dismissal of the appeal. The original sentence imposed by the sentencing judge remained in effect.

Orders