R v Kursunlu [2001] VSCA 240

5. The appellant has been granted leave to appeal against the sentence. In addition to a contention that the sentence is manifestly excessive, the grounds of appeal are that the sentencing judge took into account facts which did not relate to the counts in respect of which the appellant was convicted, erred in cumulating the sentences imposed in respect of two counts where the acts constituting the events were the same, failed to give any or any sufficient weight to a number of mitigating factors and erred in ordering the incarceration of the appellant when the purposes of sentencing could have been achieved without his confinement.

8. The appellant is aged 22 years and was aged 19 years when the offences were committed. As is often the case when crimes such as these are being considered, the offender has no prior convictions and is otherwise a fine member of the community. The sentencing judge described him as "a perfectly decent, hard-working young man who has never been in trouble with the law". The appellant's parents were separated and the appellant lives with and supports his mother, who is unable to work because of an injury she suffered at work.

11. The offences took place in the afternoon of Saturday 13 February 1999. The appellant and his friend Gokmen Killi left the Fountain Gate Shopping Centre to drive to Pakenham. The appellant drove a Ford sedan and was accompanied by his brother. Killi drove a Honda sports car. Their route lay along the Princes Highway, which comprised a divided carriageway with two lanes in each direction. The road was wet.

14. Some 17 persons who were travelling on the highway at the same time as the appellant described the course and speed of the cars driven by the appellant and Killi. The highest estimate of speed was one of "anywhere from 120 up to about 160" kilometres per hour. The wife of that witness, who was travelling in the same car, estimated the speed of the two cars as "about 120, 130". Two witnesses estimated the speed of the cars at as much as 150 kilometres per hour. The remainder thought the speed was 140 kilometres per hour or less. All the witnesses agreed that the appellant and Killi were travelling in a close convoy. For the most part the two cars were in the right-hand lane. Killi's car left the road at a bend when he was just behind and in the left lane beside the appellant's car. Killi's car hit a tree and he was fatally injured. It was his death which gave rise to the charge of culpable driving.

17. The counts on which the appellant was convicted charged that he "without lawful excuse recklessly engaged in conduct namely driving a motor car erratically and at high speed along the Princes Highway whilst engaged in a race with a vehicle driven by Gokmen Killi that placed" the appellant's brother, Remzi Kursunlu, another driver and a passenger "in danger of serious injury".

20. The Crown alleged that the conduct which endangered the appellant's brother and Michelle Smith was the movement of the appellant's car partly into her lane and close to the front of her car. Her evidence, omitting the questions to which it responded, was as follows:

"A red Ford came past very fast in the right-hand lane. I just saw a flash of red go by. Without indicating, it moved into the left lane between the car I was in and the car in front. It began to move into the lane a little bit across the lines and then moved out again very fast. Half the car would have been in the left-hand lane. I was quite fearful because he seemed to be very close and I thought he may clip the front of the car that I was in."

Asked to estimate the speed of the appellant's car, she said that "... it was a lot faster than I was travelling, I can't estimate, it would have been over 110 at least."

25. Count 4 alleged that the appellant's conduct endangered Darren Marsham, an off-duty policeman. Marsham said that he was travelling in the right-hand lane at about 95 kilometres per hour. He said that he saw the Ford leading the Honda coming up behind him in the right-hand lane. When about 100 metres behind his vehicle, the two cars moved into the left-hand lane. He said:

"They moved quickly up on the left-hand side. At that point the red Honda moved back into the right-hand lane, they were both at the rear of my vehicle, but the red Honda moved across and as it did that, the red Ford then moved across in front of the Honda cutting it off and nearly hitting the rear of my vehicle."

He said that the Ford was very close to his vehicle so that "I couldn't see the front grille of the car". He estimated the speed of the two cars as they approached his from the rear at between 130 to 140 kilometres per hour.

30. Turning to the grounds of appeal, in my opinion the sentencing judge was entitled to cumulate part of the sentence imposed in respect of count 4 on the sentence imposed in respect of count 3. The counts described different actions which endangered different persons. The fact that the appellant's driving overall might be described as one transaction does not negate the discrete nature of the offences. There were separate series of movements endangering particular travellers, each series constituting a different offence. Concurrency is not inevitably the correct way to deal with two or more offences arising in the course of a single transaction. Thus cumulation may be properly ordered where there are several victims of one course of conduct. As Hedigan, A.J.A. said in R. v. Musson[1]:

"There is no principle that cumulation cannot be supported when there are two consequences of a single event. The law does not so circumscribe the exercise of sentencing discretions."

In the present case there were not two victims, but rather two events. In my view cumulation did not constitute sentencing error.

35. I would reject the contention that the judge sentenced the appellant for activities apart from the evidence constituting the offences in respect of which he was found guilty. The events described by the judge in the course of his sentencing remarks were part and parcel of the conduct out of which the offences arose, that is, they formed the context in which the offences were committed. There is no reason to suppose that in describing those events the sentencing judge brought to account any offences other than those in respect of which the appellant had been found guilty by the jury.

38. The fact that the prosecutor submitted that a wholly suspended sentence was within the range of sentences open to the sentencing judge does not mean that refusal to wholly suspend the sentence was outside that range. The sentencing judge may have thought, properly in my view, that a wholly suspended sentence would not be a significant deterrent to other youths minded to use their motor cars as high-speed toys.

41. When the death of Killi is put to one side, the central question which this appeal raises is whether the appellant's driving warranted the imposition of 18 months' imprisonment with a minimum term of six months' imprisonment, that is, whether the sentence was manifestly excessive.

44. The sentencing judge said that the appellant and his friend began "racing" which "was fast and furious". While they might not have raced in the sense of driving as fast as possible to arrive first at a destination, the witnesses did describe high speed, formation driving in which the appellant and his friend raced through the traffic together at a far higher speed than the other cars. There is no denying the danger which that driving on a wet road posed to other travellers. The slightest miscalculation by an inexperienced driver was likely to have had tragic results.

47. 14 The maximum sentence prescribed by Parliament for the offence is five years' imprisonment. In my opinion the appellant's driving justified the sentence which was imposed upon him. The jury were entitled to and did find that the appellant drove recklessly, erratically, at high speed whilst racing another vehicle. He engaged in this self-indulgent conduct at the hazard of the lives of innocent people. The fact that apart from his attitude to driving he has led an exemplary life is not to the point. He is to be punished for that attitude. Driving such as this must be denounced and those who engage in it should understand that they will be punished if they are detected. In dealing with offences of this nature I do not think it can be said, despite the submission of the appellant's counsel, that it is a sentencing error to impose a prison sentence as a general deterrent on a person who was 19 years old when the offences were committed. Nor do I think that loss of a driving licence is sufficient punishment. If this driving did not lead to imprisonment, it might be said that Parliament's view of the gravity of the offence has been ignored.

62. The formal order of the Court is that the appeal is dismissed.

[1] [1997] 1 V.R. 656 at 660.