Hawre Sherwani v The Queen - [2017] VSCA 26

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0162

HAWRE SHERWANI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2017
DATE OF JUDGMENT:	23 February 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 26
JUDGMENT APPEALED FROM:	[2016] VCC 1000 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentencing – Manifest excess – Recklessly causing serious injury – Sentence of six years’ imprisonment – Non-parole period four years – Membership of outlaw motorcycle gang relevant sentencing consideration – Premeditated attack – Attack in concert with co-offender – Attack continued while victim on ground – Broken arms and multiple facial injuries suffered – Applicant had significant history of violence – Current sentencing practice – Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; Nam Son Nguyen v The Queen [2016] VSCA 332, cited – No inappropriate relativity between cases referred to and impugned sentence – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr J P O’Connor	Theo Magazis & Associates
For the Crown	Ms G Coghlan	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

FERGUSON JA:

The applicant pleaded guilty to one charge of recklessly causing serious injury. The applicant was sentenced to six years’ imprisonment, with a non-parole period of four years.[1] The applicant seeks leave to appeal against his sentence, on the ground that the sentence imposed is manifestly excessive.
[1]The 6AAA statement noted that, if not for the plea of guilty, the applicant would have been sentenced to a term of seven years’ imprisonment with a non-parole period of five years.

Circumstances of offending

The victim, DS, was the manager of a smash repairs business in Collingwood. On 21 July 2014, the applicant attended the premises and asked to speak to DS. Another employee informed the applicant that DS was not at the premises and the applicant stated that he would return later in the day.

At approximately 2:37 pm DS arrived at the premises and parked inside. The applicant approached DS and shook his hand. A male co-accused also entered the workshop area and began punching DS to the head. DS fell to the ground and attempted to cover his head in order to protect himself. The applicant and his co-accused continued to punch and kick him for approximately 45 seconds. DS lay motionless in the foetal position as he was kicked to the upper body, arms and head.

The applicant and co-accused left before police arrived. The victim was transported to hospital by ambulance. He sustained two broken arms requiring surgery and the insertion of pins and rods, as well as multiple facial injuries.[2] The victim did not cooperate with police and was subsequently unable to be located by police.
[2]DPP v Sherwani [2016] VCC 1000 [5] (‘Reasons’).

The offending was captured on CCTV. CCTV ‘stills’ were circulated and the offenders were recognised by a police officer…

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.

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Details

Case: [2017] VSCA 26
Decision Date: 23 February 2017

CaseChat Overview and Summary

The appeal arose from a conviction for recklessly causing serious injury by Hawre Sherwani, with the case being heard in the Court of Appeal. The primary issue was whether the sentence of six years' imprisonment with a non-parole period of four years was manifestly excessive. This appeal hinged on whether the sentencing judge appropriately considered the factors relevant to the crime, including Sherwani’s involvement in an outlaw motorcycle gang, the premeditated nature of the attack, and his history of violence.

The legal issues included assessing the proportionality of the sentence given the severity of the injuries inflicted on the victim, who suffered broken arms and multiple facial injuries, and whether the judge had erred in not reducing the sentence based on the defendant's early guilty plea. Another issue was whether the relevance of Sherwani's membership in an outlaw motorcycle gang and his violent history warranted a harsher sentence, and whether the attack, which continued even after the victim was on the ground, was adequately considered. The appeal also questioned whether the sentence was disproportionate when compared to similar cases.

The Court of Appeal found that the sentencing judge had thoroughly considered all relevant factors, including the severity of the attack and Sherwani's criminal history. The court found no inappropriate relativity between the impugned sentence and the cases of Director of Public Prosecutions (Cth) v Thomas and Nam Son Nguyen v The Queen. The attack was premeditated and particularly brutal, with the victim being assaulted even after falling to the ground. The relevance of Sherwani's gang membership and violent history also supported the sentencing decision. The appeal was dismissed, and leave to appeal to the High Court was refused.

Orders