R v Djeri - [2006] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 326 of 2005

THE QUEEN
	v.
NAKIA KIOKI DJERI

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JUDGES:	WARREN, C.J. and NETTLE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2006
DATE OF JUDGMENT:	14 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 195

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Criminal Law – Sentencing – Plea of Guilty – Burglary 1 count, theft 4 counts, handling stolen goods 2 counts and obtaining property by deception 3 counts – Sentence of two years and nine months with non-parole period of one year and eight months – Whether error in respect of non-parole period from earlier sentence vitiates sentencing process – Appeal upheld – Head sentence upheld and non-parole period reduced to 14 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Victoria Legal Aid

WARREN, C.J.:

I invite Nettle, J.A. to state his reasons first.

NETTLE, J.A.:

On 15 September 2005 the appellant pleaded guilty before a judge of the County Court at Melbourne to one count of burglary (count 1), four counts of theft (counts 2, 3, 6 and 8), three counts of obtaining property by deception (counts 4, 7 and 10) and two counts of handling stolen goods (counts 5 and 9). After hearing a plea in mitigation of penalty the judge sentenced the appellant on count 1 to a term of six months' imprisonment, on each of counts 2, 4, 7 and 10 to a term of nine months' imprisonment, and on each of counts 3, 5, 6, 8 and 9 to a term of twelve months' imprisonment. His Honour treated the sentence imposed on count 9 as the base sentence and cumulated the sentences imposed on counts 3 and 7 on the sentence imposed on count 9 and on each other, thereby making for a total effective sentence of two years and nine months' imprisonment, and set a non-parole period of one year and eight months.

The appellant now appeals against the sentence on two grounds, namely:

(a)the judge was told and therefore sentenced the appellant on the basis that in February 2005 the appellant had been sentenced in respect of other offences to a term of imprisonment of 13 months without a non-parole period, whereas in fact the appellant had been sentenced in respect of those other offences to a term of imprisonment of 16 months with a non-parole period of 10 months; and
(b)the judge erred in failing to set a new single non-parole period pursuant to s.14 of the Sentencing Act 1991 in respect of all sentences to be served.

The Crown concedes that the judge was misinformed and therefore sentenced the appellant on the basis that he had been sentenced in respect of other offences to a

term of imprisonment of 13 months without a non-parole period, whereas in fact he had been sentenced in respect of those other offences to a term of 16 months with a non-parole period…

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 R v Djeri

Details

AGLC: R v Djeri [2006] VSCA 195
Case: [2006] VSCA 195
Decision Date: 14 September 2006

CaseChat Overview and Summary

The appellant, Djeri, was found guilty of burglary, theft, handling stolen goods, and obtaining property by deception. He appealed against the sentence imposed by the County Court of Victoria, contending that the sentencing process was flawed due to an error in the calculation of the non-parole period. The Victorian Court of Appeal was tasked with determining whether the error in the non-parole period calculation from an earlier sentence rendered the entire sentencing process invalid.

The primary legal issue before the court was whether the error in the calculation of the non-parole period from a prior sentence invalidated the current sentencing process. The court considered the principles of legality and fairness in sentencing, particularly the requirement for accurate calculation of non-parole periods. It was necessary to examine the impact of the error on the overall fairness and integrity of the sentencing process.

The Court of Appeal determined that the error in the calculation of the non-parole period from the earlier sentence indeed rendered the sentencing process flawed. However, the court upheld the head sentence of two years and nine months but reduced the non-parole period to 14 months. The court emphasised the importance of accurate calculation of non-parole periods to ensure the fairness and legality of the sentencing process. Consequently, the appeal was upheld in part, with the non-parole period being adjusted to comply with legal standards.

The final orders of the court were to uphold the head sentence of two years and nine months but to reduce the non-parole period from one year and eight months to 14 months. The court's decision underscores the necessity for meticulous attention to detail in the calculation of non-parole periods to maintain the integrity of the sentencing process.

Orders