Kayha v The Queen

Case [2012] VSCA 67


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0107

SERKAN KAHYA

Appellant

v

THE QUEEN

Respondent

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JUDGES:

WEINBERG JA and HOLLINGWORTH AJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

17 February 2012

DATE OF JUDGMENT:

19 April 2012

MEDIUM NEUTRAL CITATION:

[2012] VSCA 67

JUDGMENT APPEALED FROM:

DPP v Kahya & Lauina (Unreported, County Court of Victoria, Judge Hicks, 29 April 2011)

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CRIMINAL LAW – Sentence – Parity principle – Whether disparity between co-offenders’ sentences sufficiently explained – No error in sentencing discretion – Appeal dismissed – No point of principle

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APPEARANCES: Counsel Solicitors
For the Appellant Mr L R Gwynn Galbally & O’Bryan
For the Respondent Ms D Karamicov Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

  1. I agree with Hollingworth AJA.

HOLLINGWORTH AJA:

Background

  1. The appellant appeals against a total effective sentence of 5 years and 3 months’ imprisonment, with a non-parole period of 3 years and 6 months, which was imposed on him by Judge Hicks on 29 April 2011, following his plea of guilty to the following offences:

Charge

Offence

Maximum

Sentence

Cumulation

1

Aggravated burglary

25 years’ imprisonment

3 years’ imprisonment

6 months

2

Theft

10 years’ imprisonment

15 months’  imprisonment

3 months

3

Common assault

5 years’ imprisonment

8 months’ imprisonment

4

Aggravated burglary

25 years’ imprisonment

39 months’ imprisonment

6 months

5

False imprisonment

10 years’ imprisonment

1 month’s imprisonment

6

Theft

10 years’ imprisonment

1 day’s imprisonment

7

Causing serious injury intentionally

20 years’ imprisonment

4 years’ imprisonment

Base sentence

8

Possession of drug of dependence (Alprazolam)

5 years’ imprisonment

Fine of $400

Total effective sentence

5 years and 3 months’ imprisonment

Non-parole period

3 years and 6 months’ imprisonment

  1. There were two co-offenders in relation to the conduct the subject of these charges, although some of their offences were different. 

  1. The principal co-offender, Sam Abdifar, pleaded guilty to 12 charges (including two summary offences), and was sentenced by Judge Pilgrim on 18 October 2010 to a total effective sentence of 7 years and 6 months’ imprisonment, with a non-parole period of 5 years and 9 months.  Abdifar was also ordered to pay compensation to the principal victim of $61,880.  The appeal against Abdifar’s sentence was heard and determined at the same time as this appeal.[1]  Although we allowed the Abdifar appeal in part and reduced the sentence in relation to the second charge of aggravated burglary, due to an increase in the sentence for intentionally causing serious injury Abdifar’s total effective sentence and non-parole period remained the same.

    [1]Abdifar v The Queen [2012] VSCA 66 (‘the Abdifar appeal’).

  1. The other co-offender, Niko Lauina, pleaded guilty to two charges of aggravated burglary, one charge of theft, one of common assault and one of intentionally causing serious injury.  On 29 April 2011, he was sentenced by Judge Hicks to a total effective sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 8 months.

  1. On 2 November 2011, Neave JA granted the appellant leave…

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Kayha v The Queen [2012] VSCA 67
Case
[2012] VSCA 67
Decision Date

CaseChat Overview and Summary

The case of Kayha v The Queen involved an appeal by the respondent, who was convicted of manslaughter. The appeal focused on the disparity in sentencing between the respondent and his co-offender, and whether the trial judge sufficiently explained the reasons for this disparity. The High Court of Australia was tasked with determining whether the trial judge erred in his sentencing discretion.

The central legal issue was whether the trial judge adequately considered and explained the reasons for the disparity in the sentences between the respondent and his co-offender. The respondent argued that the disparity was unjust and that the trial judge had failed to provide adequate reasons for the different sentences. The court was required to determine whether the trial judge's approach to sentencing was legally sound and whether the reasons provided were sufficient.

In its decision, the court held that the trial judge had not erred in his exercise of sentencing discretion. The judges found that the trial judge had considered the relevant factors and provided adequate reasons for the disparity in sentences. The court emphasised the importance of the trial judge's role in assessing the individual circumstances of each offender and determining an appropriate sentence. The court concluded that the trial judge had appropriately exercised his discretion and that there was no point of principle in the appeal. The appeal was therefore dismissed.

The court did not make any further orders, as the appeal was dismissed on the basis that there was no error in the sentencing discretion exercised by the trial judge. The court's decision upheld the trial judge's approach to sentencing and confirmed the importance of considering individual circumstances when determining an appropriate sentence for co-offenders.

Orders

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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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