DPP v Salih - [2016] VSCA 107

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0003

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
DEREN SALIH	Respondent

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JUDGES:	ASHLEY, COGHLAN and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2016
DATE OF JUDGMENT:	13 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 107
JUDGMENT APPEALED FROM:	DPP v Salih [2015] VCC 1932 (Judge Gaynor)

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CRIMINAL LAW – Sentence – Aggravated burglary – False imprisonment – Appeal by Director of Public Prosecutions – Sentence of Community Correction Order for five years – Conditions imposed – Sentence manifestly inadequate – Residual discretion not exercised – Appeal allowed – Respondent re-sentenced to total effective sentence of four year’s imprisonment – Non-parole period two years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr M G O’Connell SC with Mr S Norton	Stary Norton Halphen

ASHLEY JA:

I agree in the reasons of Coghlan JA and with the orders which his Honour proposed.

COGHLAN JA:

On 23 October 2015, Deren Salih, the respondent, was convicted in the County Court of one charge of aggravated burglary and four charges of false imprisonment. He was sentenced on 16 December 2015 as follows:

Charge on Indictment Offence Maximum Sentence

1 Aggravated Burglary [Crimes Act1958 s 77(1)] 25 years [Crimes Act1958 s 77(2)] Community Correction Order for 5 years with conditions to complete 500 hours unpaid community work in addition to supervision, assessment and treatment for drug abuse, mental health assessment and treatment and judicial monitoring

2, 3, 4 & 5 False Imprisonment [Common Law] 10 years [Crimes Act 1958s 320]

Total Effective Sentence: Community Correction Order for 5 years

Non-Parole Period: N/A

Pre-sentence Detention Declared: Nil

The Director of Public Prosecutions (‘the Director’) now appeals against the sentence imposed upon the respondent. By notice dated 13 January 2016, he relies upon the following ground:

1. Ground 1 — The sentence imposed is manifestly inadequate.
Particulars:
In sentencing the respondent, the learned sentencing Judge —
(a)Failed to have sufficient regard to the maximum penalty prescribed for the offence;
(b)Failed to give sufficient weight to the nature and objective gravity of the offending;
(c)Failed to give sufficient weight to the impact of the offending upon the victims;

(d)Failed to give sufficient weight to the aggravating features of the offending, namely:
a.the use of a weapon, a firearm
b.the victims being children
c.offending in company

(e)Failed to have regard to current sentencing practices for the offence of aggravated burglary contrary to s 77 of the Crimes Act 1958;
(f)Gave too much weight to factors in mitigation, namely delay and prospects of rehabilitation; and
(g)Failed to give sufficient weight to the sentencing purposes of protection of the community, general and specific deterrence and punishment and failed to manifest denunciation of the offending.

The ground of appeal is particularised in some detail but, as the matter was argued for the Director, it really comes down to…

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 DPP v Salih

Details

AGLC: DPP v Salih [2016] VSCA 107
Case: [2016] VSCA 107
Decision Date: 13 May 2016

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Salih involved an appeal by the DPP against a sentence given to the respondent for aggravated burglary and false imprisonment. The trial judge had sentenced the respondent to a Community Correction Order (CCO) for five years, which the DPP deemed manifestly inadequate. The matter was heard in the Court of Appeal of the Supreme Court of Queensland. The appeal centred on the appropriateness of the sentence handed down by the trial judge, specifically whether the CCO with its conditions was an adequate reflection of the severity of the crimes committed. The court had to determine if the trial judge's exercise of discretion was flawed and whether the residual discretion was appropriately exercised to ensure the sentence reflected the seriousness of the crime.

The court examined the nature of the crimes, the circumstances of the offending, and the need for deterrence and denunciation in its assessment. It found that the trial judge did not sufficiently consider the gravity of the offences and the need to protect the community. The court noted that while the trial judge had considered some mitigating factors, these did not outweigh the severity of the crimes. The appellate court concluded that the sentence was manifestly inadequate and that the trial judge did not properly exercise their residual discretion. The appeal was therefore allowed, and the respondent was re-sentenced to a total effective sentence of four years’ imprisonment, with a non-parole period of two years. This re-sentencing aimed to adequately reflect the seriousness of the crimes and to provide appropriate deterrence and denunciation.

Orders