Jawahiri v The Queen

Case [2021] VSCA 287


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0199

RAPHEL JAWAHIRI Appellant
v
THE QUEEN Respondent

S EAPCR 2021 0117

HAKAN ESER Applicant
v
THE QUEEN Respondent

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JUDGES: PRIEST and T FORREST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 4 October 2021
DATE OF JUDGMENT: 20 October 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 287
JUDGMENTS APPEALED FROM: [2020] VCC 1351 (Judge Tinney);
[2021] VCC 1182 (Judge Gucciardo)

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CRIMINAL LAW — Appeal against sentence — Intentionally causing serious injury— Manifest excess — Appellant sentenced to eight years and six months’ imprisonment with non-parole period of five years and six months — Appellant 20 years old with no criminal history — Whether sufficient weight given to appellant’s youth — Mitigating weight of youth counterbalanced by objective gravity of offending — Sentence not inconsistent with current sentencing practices given comparable cases — Crimes Act 1958 s 16; Azzopardi v The Queen (2011) 35 VR 43, Director of Public Prosecutions v Lawrence (2004) 10 VR 125, Nash v The Queen [2013] VSCA 172 applied — Appeal dismissed.

CRIMINAL LAW — Appeal — Application for leave to appeal against sentence — Recklessly causing serious injury — Applicant sentenced to seven years’ imprisonment with non-parole period of five years — Whether judge was entitled to depart from agreed facts in sentencing — Impact of history of childhood deprivation on moral culpability — Whether judge erred in finding no sufficient causal connection between applicant’s deprived background and intellectual disability and offending — Crimes Act 1958 s 17; R v Storey [1998] 1 VR 359, R v Verdins (2007) 16 VR 269, Bugmy v The Queen (2013) 249 CLR 571 applied — Application for leave to appeal granted — Appeal allowed — Applicant resentenced to four years and six months’ imprisonment with non-parole period of two years and six months.

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APPEARANCES: Counsel Solicitors
For the Appellant (Jawahiri) Mr P J Smallwood with
Mr C Grant
Marcevski Lawyers
For the Applicant (Eser) Ms G F Connelly Greg Thomas, Barrister & Solicitor
For the Respondent Ms R L Harper Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA

T FORREST JA:

Introduction

  1. Raphel Jawahiri pleaded guilty in the County Court on 7 August 2020 to one charge of intentionally causing serious injury.  He was sentenced by Judge Tinney to eight years and six months’ imprisonment with a minimum term of five years and six months to be served before parole eligibility.

  1. Hakan Eser pleaded guilty in the County Court on 23 April 2021 to one charge of recklessly causing serious injury.  He was sentenced by Judge Gucciardo to seven years’ imprisonment with a minimum term of five years to be served before parole eligibility.

  1. The tables below set out the full details of both sentencing exercises.

Jawahiri

Charge on Indictment K12832259 Offence Maximum Sentence
1. Intentionally cause serious injury (contrary to Crimes Act 1958 s 16) 20 years’ imprisonment 8 years 6 months’ imprisonment
Total effective sentence: 8 years 6 months’…

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Jawahiri v The Queen [2021] VSCA 287
Case
[2021] VSCA 287
Decision Date

CaseChat Overview and Summary

Jawahiri v The Queen involved two separate appeals against sentencing in the Victorian Court of Appeal. The first appeal was by Jawahiri who was convicted of intentionally causing serious injury and was sentenced to eight years and six months in prison, with a non-parole period of five years and six months. The appellant argued that insufficient weight was given to his youth, which was a mitigating factor, in the sentencing. The second appeal was by an applicant convicted of recklessly causing serious injury, who was sentenced to seven years in prison, with a non-parole period of five years. The applicant sought leave to appeal against his sentence, arguing that the judge had erred in sentencing and had not considered his background of childhood deprivation and intellectual disability.

The court was required to determine whether the sentences imposed were appropriate, considering the specific circumstances of each case. For Jawahiri, the issue was whether the sentencing judge had given sufficient weight to his youth and whether the sentence was manifestly excessive. For the applicant, the court needed to decide whether the sentencing judge was entitled to depart from the agreed facts in sentencing, and whether the judge had erred in finding no sufficient causal connection between the applicant's background and his offending.

The court held that the sentence for Jawahiri was not manifestly excessive and that the mitigating factor of his youth was counterbalanced by the gravity of the offence. The court found that the sentence was consistent with current sentencing practices for comparable cases. Regarding the applicant, the court found that the sentencing judge was not entitled to depart from the agreed facts and that the judge had erred in finding no sufficient causal connection between the applicant's background and his offending. The court granted leave to appeal, allowed the appeal, and resentenced the applicant to four years and six months in prison, with a non-parole period of two years and six months.

The final orders of the court were that the appeal by Jawahiri was dismissed, and the appeal by the applicant was allowed with a new sentence imposed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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