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
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.
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.
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’…
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
AGLC
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.