Guseli v The Queen [2018] VSCA 182

2 The applicant was found guilty after a trial. He was sentenced to a term of imprisonment of 11 years with a non-parole period of 7 years.

3 The applicant seeks leave to appeal his sentence on seven proposed grounds.

Ground 1

The sentencing judge erred in finding that the circumstances of the culpability of the applicant were of a category of seriousness that they were 'approaching a worst-case' (Sentence at [41]).

Ground 2

The sentencing judge erred in finding that:

(i) if the victim had been wearing a seatbelt then he may have survived the collision whereas the evidence was that he would have survived the collision (Sentence at [42]); and,

(ii) as a result of the culpability of the applicant's offending 'approaching a worst-case', the submission that the fact that the victim would have survived the collision if he was wearing a seatbelt, should be rejected (Sentence at [42]); and,

(iii) the fact that the victim would have survived the collision if he was wearing a seatbelt was, in the circumstances, not a matter in mitigation of penalty (Sentence at [42][43] [44] and [45]).

Ground 3

The sentencing judge erred in denying the applicant's counsel procedural fairness in the following circumstances:

(i) there was expert evidence that the victim would have survived if he was wearing a seatbelt;

(ii) as a result, it was urged by counsel for the applicant that application of the principles enunciated by this Court in Spanjol v The Queen [2016] VSCA 317 should result in some mitigation in penalty;

(iii) this submission was accepted by the Crown;

(iv) the judge decided that the principles in Spanjol did not apply to, and could be distinguished from, the instant case;

(v) the judge did not give the applicant's counsel any opportunity to address argument upon the issue of whether the principles in Spanjol did not apply to, and could be distinguished from, the instant case (Sentence at [45]).

Ground 4

The sentencing judge erred in finding that the fact that the applicant had pleaded not guilty to the offence was a factor to be taken into account in the attribution of weight to the following purposes of punishment:

(i) specific deterrence (Sentence at [58]); and,

(ii) rehabilitation (Sentence at [68]).

Ground 5

The sentencing judge erred in finding:

(i) that recent decisions of the High Court of Australia (namely, R v. Kilic [2016] HCA 48; (2016) 259 CLR 256 and Director of Public Prosecutions v Dalgliesh (A Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063); and,

(ii) that recent decisions of this Court in relation to dangerous driving causing death (for example, Stephens v The Queen (2016) 50 VR 540) and negligently causing serious injury (for example, Harrison & Rigogiannis v The Queen [2015] VSCA 349; (2015) 49 VR 619) resulted in the level of sentences for culpable driving 'drifting up',

and consequently, the sentence in the instant case should be of a high order.

Ground 6

The sentencing judge erred in finding that a relevant factor in the application of the principle of 'just punishment' was that 'the wider society must be placated by the sentence' to be passed upon the applicant (Sentence at [83] and [84]).

Ground 7

The sentence is manifestly excessive.

4 In the course of oral submissions the applicant abandoned reliance on proposed ground 3.

5 The respondent conceded that leave to appeal on proposed grounds 1, 2, 5 and 7 should be granted.

6 Having read the respective written cases and after hearing oral submissions, I determined that the applicant should have leave to appeal on all the proposed grounds, save for proposed ground 3.

7 Without indicating any conclusion as to the eventual outcome, it seems to me that the proposed grounds raise the following issues, which the applicant ought to have the opportunity to argue on an appeal:

• The sentencing judge's characterisation of his offending as 'approaching a worst case' (proposed ground 1).
• The relevance of the issue of whether the deceased was wearing a seatbelt and, if not, whether that had contributed to his death in any relevant way, and the issue of how that matter was dealt with by the sentencing judge (proposed ground 2).
• The sentencing judge's treatment of the offender's not guilty plea (proposed ground 4).
• The sentencing judge's treatment of current sentencing practice (proposed ground 5).
• What the sentencing judge said concerning placating the community (proposed ground 6).
• Whether the sentence imposed was manifestly excessive. In that respect I refer to the respondent's written submission that the sentence is 'undoubtedly a stern one'; that, if the applicant's position in relation to the seatbelt issue, were accepted the respondent would concede that the sentence was manifestly excessive; and that the sentence imposed is a 'statistical outlier' (proposed ground 7).

8 I emphasise that I express no view as to the eventual merits on these issues.

9 I accordingly granted leave to appeal on all the proposed grounds save for proposed ground 3.