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Yuksel v Marchesani

Yuksel v Marchesani

Case [2011] WASC 57 28 February 2011

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: YUKSEL -v- MARCHESANI [2011] WASC 57

CORAM: JENKINS J

HEARD: 28 FEBRUARY 2011

DELIVERED : 28 FEBRUARY 2011

FILE NO/S: SJA 1080 of 2010

BETWEEN: SELMAN YUKSEL
Appellant
AND
JACINTA RENAE MARCHESANI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S A HEATH
File No  :PE 42588 of 2010

Catchwords:

Criminal law - Appeal against sentence - Driving whilst under court imposed suspension - Whether sentence of imprisonment excessive - Whether sentence of imprisonment ought to have been suspended - Affect of appellant's psychological condition on determination of sentence - Turns of own facts

Legislation:

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A E Monisse
Respondent: Mr M B Danger

Solicitors:

Appellant: Stephen McGrath
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Anderson v Little [2009] WASC 143
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Gable v Nardini [2010] WASC 321
Griekspoor v Scott (2000) 23 WAR 530
Humble v State Solicitor for Western Australia [2009] WASC 99
Mears v Holleman [2010] WASC 39
Newton v State of Western Australia [2006] WASCA 247
Paparone v The Queen [2000] WASCA 127
Payne v The Queen [2002] WASCA 186
Thompson v The Queen [2005] WASCA 223

JENKINS J: The appellant appeals from the sentence imposed on him in the Magistrates Court at Perth on 9 August 2010 for the offence of driving whilst not being a person authorised to do so. The magistrate sentenced the appellant to 7 months' imprisonment for the offence. The appellant was also disqualified from holding a motor driver's licence for nine months cumulative on any other period of disqualification yet to be served.
On 4 October 2010 McKechnie J ordered that the application for leave to appeal and the appeal be heard together. The grounds of appeal are:
(1)that the sentence was excessive, given factors personal to the appellant including:
(a)his untreated psychological condition that existed at the time of his 2008 to 2010 offending behaviour; and
(b)the appellant's remorse demonstrated by his psychological treatment sessions planned to carry on this treatment and his early pleas of guilty;
(2)the magistrate failed to give proper consideration to the applicability and/or appropriateness of a lesser penalty, particularly a suspended sentence of imprisonment.
On 9 August 2010 the appellant pleaded guilty to a charge which alleged that on 23 June 2010 at Glendalough he drove a motor vehicle on Jugan Street while not being a person authorised by pt IV(A) of the Road Traffic Act 1974 (WA) (the Act), and whose authority to drive was at the time suspended, contrary to the Act s 49(1)(a) and s 49(3)(c). The appellant also pleaded guilty to one count of driving with a blood alcohol content exceeding .02%, namely .031%, without an exemption. I will refer…

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 Yuksel v Marchesani

Details

AGLC: Yuksel v Marchesani [2011] WASC 57
Case: [2011] WASC 57
Decision Date: 28 FEBRUARY 2011

CaseChat Overview and Summary

In the matter of Yuksel v Marchesani, the appellant, Yuksel, was convicted of driving while his licence was under a court-imposed suspension. He appealed against the sentence of imprisonment, arguing it was excessive and ought to have been suspended. Additionally, Yuksel contended that his psychological condition should have been considered in determining his sentence. The appeal was heard by the Court of Appeal.

The primary legal issues the court needed to address were whether the sentence imposed was excessive, whether it should have been suspended, and the impact of the appellant's psychological condition on the sentence determination. The court had to consider the principles of sentencing and the specific circumstances of the case, including the appellant's mental health, to determine if the sentence was appropriate.

The Court of Appeal held that the sentence of imprisonment was not excessive, taking into account the appellant's criminal history and the seriousness of the offence. The court found that while the appellant's psychological condition was a mitigating factor, it did not warrant a suspended sentence. The court concluded that the sentence was proportionate to the offence and the appellant's criminal history, and the psychological condition did not change the outcome. The appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of imprisonment would stand. The court did not alter the sentence, affirming the trial judge's decision. The appellant's psychological condition was noted, but it did not sufficiently mitigate the severity of the offence to warrant a different sentence.

Orders