SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0079
| YACQUB KHAYRE |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
---
| JUDGES | NEAVE And COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 September 2013 |
| DATE OF JUDGMENT | 14 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 286 |
| JUDGMENT APPEALED FROM | DPP v Khayre (Unreported, County Court of Victoria, Judge Hampel, 12 October 2012) |
---
CRIMINAL LAW – Leave to appeal against sentence – One charge of aggravated burglary, two charges of theft, one charge of causing injury intentionally, one charge of causing injury recklessly and one charge of stating false name – Total effective sentence of 5 years 6 months’ imprisonment – Non-parole period of 3 years – Whether judge erred in approach to previously served time on remand for charges later acquitted of – Time on remand appropriately regarded – Whether judge erred in failing to find the applicant remorseful – Whether sentence manifestly excessive – Serious example of aggravated burglary – Leave to appeal refused.
---
| Appearances: | Counsel | Solicitors |
| For the applicant | Mr C T Carr | James Dowsley & Associates |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I agree with Justice Coghlan that the application should be refused.
COGHLAN JA:
On 4 October 2012 the applicant pleaded guilty to the charges set out in the table below. On 12 October 2012 he was sentenced as follows.
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary [s 77(1) of the Crimes Act 1958] 25 years 3 years Base 2 Theft [s 74(1) of the Crimes Act 1958] 10 years 1 year - 3 Theft [s 74(1) of the Crimes Act 1958] 10 years
1 year - 4 Causing injury intentionally [s 18 of the Crimes Act 1958] 10 years 3 years 2 years 5 Causing injury recklessly [s 18 of the Crimes Act 1958] 5 years 1 year 6 months Summary charge State false name [s 456AA(3) Crimes Act 1958] 5 penalty units Fined $250 - Total Effective Sentence: 5 years 6 months imprisonment Non-Parole Period: 3 years Pre-sentence Detention Declared: 173 days 6AAA Statement: 8 years with non-parole period of 6 years Other orders:
Disposal Order pursuant to s 78(1) of the Confiscations Act 1997..
A summary of the offending is set out in the respondent’s written case,
In the early hours of Sunday 22 April 2012 the applicant entered a home in Riggall Street, Dallas, as a trespasser. Upon entry, he was armed with a flick knife. He was carrying a torch and a black bumbag and was wearing gloves. At the time of entry, Ridvan Barca was asleep in the house. The charge of aggravated burglary was based upon entering the house with an intention to steal and having with him at the time an offensive weapon, namely a knife. [Charge 1 – aggravated burglary]
The applicant entered the bedroom of Tolga Barca and removed a quantity of property belonging…
Continue reading Khayre v The Queen
Sign in free to access the full text
- AGLC
- Khayre v The Queen [2013] VSCA 286
- Case
- [2013] VSCA 286
- Decision Date
CaseChat Overview and Summary
The applicant contended that the judge had erred in his approach to the time the applicant had previously served on remand for charges that were later acquitted of. The applicant argued that the time on remand should have been disregarded in calculating the sentence. Additionally, the applicant submitted that the judge had erred in failing to find that the applicant was remorseful. The applicant also argued that the sentence was manifestly excessive, given that it was a serious example of aggravated burglary.
The Court found that the trial judge had not erred in his approach to the time the applicant had served on remand. The Court held that the time on remand could be appropriately regarded as part of the sentence for the purposes of calculating the total effective term. The Court also found that the trial judge had not erred in failing to find that the applicant was remorseful. The Court held that the trial judge had considered all relevant factors and had made a finding that was open on the evidence. Finally, the Court held that the sentence was not manifestly excessive, given the seriousness of the offences committed.
Leave to appeal against the sentence was refused.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.