Khayre v The Queen - [2013] VSCA 286

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0079

YACQUB KHAYRE
	Applicant
v
THE QUEEN
	Respondent

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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)

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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.

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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…

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 Khayre v The Queen

Details

AGLC: Khayre v The Queen [2013] VSCA 286
Case: [2013] VSCA 286
Decision Date: 14 October 2013

CaseChat Overview and Summary

Khayre v The Queen involved an appeal against a sentence imposed by the Supreme Court of Victoria. The applicant was convicted on one count of aggravated burglary, two counts of theft, one count of causing injury intentionally, one count of causing injury recklessly, and one count of stating a false name. The trial judge sentenced the applicant to a total effective term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years. The applicant sought leave to appeal against the sentence.

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