Kayha v The Queen - [2012] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0107

SERKAN KAHYA
	Appellant
v
THE QUEEN	Respondent

---

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)

---

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

---

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:

I agree with Hollingworth AJA.

HOLLINGWORTH AJA:

Background

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

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

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’).

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.

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

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 Kayha v The Queen

Details

AGLC: Kayha v The Queen [2012] VSCA 67
Case: [2012] VSCA 67
Decision Date: 19 April 2012

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