JUDGES:	WHELAN JA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2015
DATE OF JUDGMENT:	13 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 295
JUDGMENT APPEALED FROM:	DPP v Jafari (Unreported, County Court of Victoria, Judge Hannan, 24 April 2015)

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CRIMINAL LAW – Sentence – Multiple offences of aggravated burglary as well as offences against the person once inside premises – Whether principle of totality and rule against double punishment were properly applied – Pearce v The Queen (1998) 194 CLR 610 applied – Dowe v The Queen [2012] VSCA 39 distinguished – Whether sentences imposed manifestly excessive – Sentences imposed for aggravated burglaries modest – 10 year sentence imposed for intentionally causing serious injury ‘high’ but not outside the range – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S A Moglia	Matthew White and Associates
For the Crown	Mr R Gibson	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:
CAVANOUGH AJA:

On 20 April 2015, the appellant pleaded guilty in the County Court to two charges of aggravated burglary, one charge of intentionally causing serious injury, one charge of intentionally causing injury, and one charge of assault. After a plea hearing conducted on that day and continued on 24 April 2015, the appellant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1
Aggravated burglary

[s 77 of the Crimes Act 1958]
25 years [s 77(2) of the Crimes Act 1958] 3 years 6 months 14 months

2
Intentionally causing serious injury

[s 16 of the Crimes Act 1958]

20 years [s 16 of the

Crimes Act 1958]
10 years Base

3 Aggravated burglary
[s 77 of the Crimes Act 1958] 25 years [s 77(2) of the Crimes Act 1958] 3 years 12 months

4 Intentionally causing injury [s 18 of the Crimes Act 1958] 10 years [s 18 of the
Crimes Act 1958] 2 years 8 months

5 Assault [Common law] 5 years [s 320 of the
Crimes Act 1958] 6 months 2 months

Total Effective State Sentence: 13 years’ imprisonment

Non-parole period: 9 years

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 274 days

6AAA Statement: 17 years’ imprisonment with a non-parole period of 13 years

Other relevant orders:

Disposal Order

The appellant sought leave to appeal from those sentences on two grounds. The first ground was that in imposing the sentences the sentencing judge erred in failing to properly apply the principle of totality and in failing to properly apply the principle against double punishment. The second ground was that the sentence imposed on the charge of intentionally causing serious injury, the orders for cumulation and the non-parole period were manifestly excessive.

On 12 August 2015 Redlich JA granted leave to appeal on both grounds.

Circumstances of the offending

The victim of the offence of intentionally…

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 Jafari v The Queen

Details

AGLC: Jafari v the Queen [2015] VSCA 295
Case: [2015] VSCA 295
Decision Date: 13 November 2015

CaseChat Overview and Summary

The appellant was convicted of multiple offences of aggravated burglary and various offences against the person. The appeal was against the sentences imposed. The High Court of Australia heard the appeal against the sentence. The central issue was whether the principle of totality and the rule against double punishment were properly applied in sentencing the appellant. The court also had to determine if the sentences imposed were manifestly excessive. The appellant argued that the total sentence was excessive given the range of offences. The court noted the need to balance the principle of totality, which requires that the total punishment should not be disproportionate to the overall gravity of the offending, with the rule against double punishment, which prohibits punishing the same act twice.

The court found that the principle of totality and the rule against double punishment were properly applied. It referred to the principles established in Pearce v The Queen and noted that the sentences for the aggravated burglaries were modest. However, the sentence for the serious injury offence, while on the higher end, was not outside the range of appropriate sentences for such a crime. The court distinguished Dowe v The Queen, stating that the circumstances of that case were different. It concluded that while the sentence for the serious injury was substantial, it was not manifestly excessive in the context of the overall offending. The appeal was dismissed, and the original sentences were upheld.

Orders