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Ejupi v The Queen

Ejupi v The Queen

Case [2014] VSCA 2 6 February 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0129

AVZI EJUPI	Appellant
	v
THE QUEEN	Respondent

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JUDGES	PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 February 2014
DATE OF JUDGMENT	6 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 2
JUDGMENT APPEALED FROM	DPP v Ejupi (Unreported, County Court of Victoria, Judge Chettle, 11 June 2013)

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CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to two charges of attempted theft and one charge of recklessly causing serious injury – Victim received multiple stab wounds when appellant attempting thefts – Victim suffering life-threatening injuries requiring emergency surgery – Appellant having prior convictions including for use of a knife to avoid apprehension – Whether total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 6 months’ manifestly excessive – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Victoria Legal Aid
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

On 16 October 2013 Nettle JA granted the appellant leave to appeal ‘on the papers’ with respect to a single ground which contends that the individual sentences on each charge, the total effective sentence and non-parole period are manifestly excessive.[1] Having now, however, heard full argument, in my opinion the appeal should be dismissed.
[1]Leave was refused with respect to a ground asserting that the sentencing judge erred by finding that the appellant had armed himself with a knife to avoid apprehension, and by not finding that the appellant acted defensively (‘albeit excessively and disproportionately’) when he stabbed the victim.

The sentence

On 11 June 2013 the appellant pleaded guilty in the County Court to two charges of attempted theft[2] and one charge of recklessly causing serious injury.[3] He was sentenced to be imprisoned for six (6) months on each charge of attempted theft, and for 54 months on the injury charge. Three (3) months of the sentences on the attempted theft charges were ordered to be served cumulatively on the injury charge, leading to a total effective sentence of five (5) years’ imprisonment, upon which a non-parole period of three (3) years and six (6) months’ imprisonment was fixed.
[2]Crimes Act 1958, ss 74 and 321M. The maximum penalty is five years’ imprisonment.
[3]Crimes Act 1958, s 17. The maximum penalty is fifteen years’ imprisonment

Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that but for the plea of guilty he would have imposed a total effective sentence of six (6) years’ imprisonment with a non-parole period of four (4) years and three (3) months.

The offending

During the evening of 30 April 2012, the victim, Michael Jones, was at home at his address in Braybrook. At about 11.30 pm, having been alerted by another to the possibility that a theft was being committed, the victim, his father, his cousin and friends confronted the appellant in the front…

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 Ejupi v The Queen

Details

AGLC: Ejupi v The Queen [2014] VSCA 2
Case: [2014] VSCA 2
Decision Date: 6 February 2014

CaseChat Overview and Summary

The appellant, Ejupi, appealed against his sentence following a guilty plea to two charges of attempted theft and one charge of recklessly causing serious injury. The case was heard in the High Court of Australia. The appellant had inflicted multiple stab wounds on a victim during an attempted theft, causing life-threatening injuries that required emergency surgery. The appellant had a history of prior convictions, including for the use of a knife to evade apprehension.

The primary legal issue before the court was whether the total effective sentence of five years' imprisonment, with a non-parole period of three years and six months, was manifestly excessive. The appellant argued that the sentence failed to account for his youth and the possibility of rehabilitation, while the Crown contended that the severity of the injuries and the appellant's criminal history justified the sentence.

The court examined the principles of sentencing and the need to balance the protection of society with the rehabilitation of the offender. It considered the gravity of the offences, the appellant's criminal history, and the circumstances of the incident. The court concluded that the sentence was proportionate to the offences committed and that there was no basis to interfere with the trial judge's assessment. The appeal was thus dismissed.

No further orders were made by the court.

Orders