R v Nazeer - [2005] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 41 of 2004

THE QUEEN

SAJID NAZEER

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JUDGES:	CALLAWAY, BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 2005
DATE OF JUDGMENT:	7 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 81

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Criminal law - Sentencing - Recklessly causing injury, intentionally causing serious injury, failing to stop after an accident and failing to render assistance after an accident - Late plea of guilty to some, but not all, counts on which appellant convicted - View of judge that appellant was of an hysteric disposition and represented a significant danger to the community - Psychological evidence for bail application said to be to the contrary - Whether view open to judge - Use of motor car as a weapon intended to inflict, and inflicting, serious injury - Total effective sentence of eight years' imprisonment with non-parole period of six years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Paul Vale Criminal Law

CALLAWAY, J.A.:

The appellant, who is now aged 32, was presented in the County Court on one count of intentionally causing injury to Naomi Mahon (count 1), one count of recklessly causing injury to her (count 2), one count of intentionally causing serious injury to Anton Hillemacher (count 3), one count of recklessly causing serious injury to him (count 4), one count of failing to stop after an accident (count 5) and one count of failing to render assistance after an accident (count 6). Initially he contested all the charges but, on the second day of the trial, he pleaded guilty to counts 4, 5 and 6. He maintained his plea of not guilty to counts 1, 2 and 3. The jury found him guilty on counts 2 and 3, in the light of which the learned judge directed that the plea of guilty to count 4 be merged in the conviction to be recorded on count 3. The appellant therefore stood to be sentenced on counts 2, 3, 5 and 6. The maximum custodial penalty for intentionally causing serious injury is now 20 years' imprisonment. It is potentially a very serious offence indeed.[1]
[1]See and compare Director of Public Prosecutions v. Zullo [2004] VSCA 153, Director of Public Prosecutions v. Lawrence [2004] VSCA 154, R. v. Huynh [2004] VSCA 156 and R. v. Tafa Sa [2004] VSCA 182.

The appellant admitted 19 previous convictions from six court appearances between May 1991 and March 2002. Two previous convictions in June 1998 alleged on the further presentment were not admitted and the Crown did not seek to prove them. The admitted convictions included three for intentionally or recklessly causing injury, one for breach of an intervention order and one for damaging property. As Mr Boyce pointed out and as was accepted below, the circumstances of those offences were not comparable with count 3.

After hearing…

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 Nazeer

Details

AGLC: R v Nazeer [2005] VSCA 81
Case: [2005] VSCA 81
Decision Date: 7 April 2005

CaseChat Overview and Summary

The case of R v Nazeer involves the appellant who was convicted on multiple counts including recklessly causing injury, intentionally causing serious injury, and failing to stop after an accident and render assistance. The matter was heard in the Court of Appeal, where the appellant contested the severity of the sentence imposed, arguing that it was manifestly excessive. The appellant had entered a late plea of guilty to some charges but not others, leading to a complex sentencing scenario. The appellant also challenged the judge's perception of their character, particularly the assertion that they were of an hysterical disposition and a significant danger to the community.

The primary legal issues before the court were whether the trial judge was correct in forming the view that the appellant was a significant danger to the community and whether the sentence imposed was manifestly excessive. Additionally, the court had to consider the appellant's use of a motor car as a weapon, intended to inflict, and inflicting, serious injury. The court also had to weigh the conflicting psychological evidence presented during the bail application against the trial judge's assessment of the appellant's character and propensity for violence.

In delivering the judgment, the court found that the trial judge was entitled to form the view that the appellant was a significant danger to the community based on the evidence before him. The court also noted that the use of a motor car as a weapon intended to inflict serious injury was a grave matter. Furthermore, the court held that the total effective sentence of eight years' imprisonment with a non-parole period of six years was not manifestly excessive given the gravity of the offences and the need for general deterrence. The court was not persuaded that the sentence was so disproportionate as to shock the conscience of the community.

The court dismissed the appeal against sentence, affirming the trial judge's assessment and the imposed sentence. The court found that the trial judge was entitled to his view of the appellant's character and potential danger to the community, and that the sentence was appropriate in the circumstances. The appellant's appeal against sentence was therefore unsuccessful.

Orders