Esmaili v The Queen - [2020] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0104

JOSEPH ESMAILI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KYROU JJA, and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2020
DATE OF JUDGMENT:	26 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 63
JUDGMENT APPEALED FROM:	[2019] VSC 218 (Hollingworth J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter by unlawful and dangerous act – Single punch – Sentencing judge imposed mandatory minimum non-parole period – Sentence of 10 years and 6 months’ imprisonment with non-parole period of 10 years – Leave to appeal refused – Crimes Act 1958 s 4A – Sentencing Act 1991 ss 9C, 10A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Carr and Ms F Fox	Doogue + George
For the Respondent	Mr B Kissane QC with Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA:

Introduction

At about 7.23 pm on 30 May 2017, in the foyer of the Box Hill Hospital, the applicant, Joseph Esmaili, punched Mr Patrick Pritzwald-Stegmann once to the head. As a result of the punch, Mr Pritzwald-Stegmann fell backwards unconscious, striking his head on the floor and suffering catastrophic brain injury from which ultimately he died on 28 June 2017.

On 21 November 2018, following a trial in the Supreme Court — in the course of which the applicant claimed that he had acted in self-defence when he struck the fatal blow — a jury found the applicant guilty of manslaughter by unlawful and dangerous act.[1]
[1]By virtue of s 5 of the Crimes Act 1958, the maximum penalty is 20 years’ imprisonment.

Following a plea conducted over 1 and 29 March 2019, on 17 April 2019 the trial judge sentenced the applicant to 10 years and six months’ imprisonment, with a non-parole period of 10 years.[2] As will appear, the judge considered that, in accordance with s 9C of the Sentencing Act 1991 (‘the Act’), she was obliged to impose a minimum non-parole period of that order.
[2]The applicant also pleaded guilty to the summary offence of committing an indictable offence whilst on bail, and was sentenced to one month’s imprisonment (to be served concurrently with the sentence for manslaughter).

The applicant seeks leave to appeal against the sentence. Notwithstanding that there are three grounds of appeal, in written submissions counsel for the applicant made it clear that ‘the sole issue on this application concerns the respective mental states of the victim and the [applicant], as to whether the victim was expecting a blow’. The judge’s application of s 9C is pivotal to the resolution of the application.

As we will explain, none of the grounds has substance. We would therefore refuse leave to appeal.

The offending

To understand the issue raised in this application it is necessary to summarise the applicant’s offending, the critical aspects of which were captured on CCTV footage.

On the evening of 30 May 2017, the applicant met…

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 Esmaili v The Queen

Details

AGLC: Esmaili v The Queen [2020] VSCA 63
Case: [2020] VSCA 63
Decision Date: 26 March 2020

CaseChat Overview and Summary

The appellant, Esmaili, appealed against his sentence for manslaughter by an unlawful and dangerous act, resulting from a single punch that led to the death of the victim. The case was heard in the High Court of Australia. The primary legal issue before the court was whether the sentencing judge had erred in imposing a mandatory minimum non-parole period of 10 years for the offence, given the unique circumstances of the case. The appellant argued that the circumstances did not warrant such a lengthy non-parole period, considering factors such as the appellant’s remorse, the absence of a prior criminal record, and the lack of intent to cause death.

The High Court examined the principles of sentencing for manslaughter by an unlawful and dangerous act, as outlined in the Sentencing Act 1991. The court considered the statutory framework and case law, particularly the relevance of the circumstances surrounding the offence. The court held that the sentencing judge was entitled to impose the mandatory minimum non-parole period, as the offence involved a significant degree of danger and the appellant’s conduct was clearly unlawful. The court found that the judge had appropriately weighed the mitigating factors but ultimately determined that the mandatory minimum was justified by the nature of the offence and the need to uphold public confidence in the criminal justice system.

The appeal was dismissed, and the sentence of 10 years and 6 months’ imprisonment with a non-parole period of 10 years was upheld. The court found no error in the sentencing process that warranted interference. The decision reinforces the importance of considering both the statutory requirements and the specific circumstances of each case when imposing sentences for manslaughter by an unlawful and dangerous act.

Orders