R v Pashalay - [1998] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 34 of 1998

THE QUEEN

SHYQRI PASHALAY

---

JUDGES:	WINNEKE, P., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 1998
DATE OF JUDGMENT:	27 July 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 18

---

Criminal law - Sentence - Manslaughter by “unlawful and dangerous act” - Accused of Albanian background shooting his wife in course of domestic argument - Accused perceiving that wife had been unfaithful - Argument that criminality lessened by reason of accused’s cultural background and Albanian “code of dishonour” rejected - Application dismissed.

---

APPEARANCES:

Counsel

Solicitors

For the Crown

Mr. C.G. Hillman

P.C.

Wood,

Solicitor for

Public Prosecutions

For Applicant

Mr. C. Lovitt, Q.C.

Pryles & Defteros

WINNEKE, P.:

The applicant, Shyqri Pashalay, who is presently aged 55 years, was presented before the Supreme Court on 2 February 1998 on a count of murdering his wife, Ashaj Pashalay. On the third day of the trial the Crown accepted his plea of guilty to manslaughter by "unlawful and dangerous" act. The applicant admitted inconsequential prior convictions and, after a plea in mitigation, he was sentenced to a period of imprisonment of seven years and directed to serve a minimum period of five years before becoming eligible for parole. It is against that sentence that he has applied for leave to appeal to this Court.
The applicant killed his wife by shooting her in the chest and arm from close quarters in their matrimonial home on 5 August 1996. On the same day the applicant admitted the killing but said that he was only intending to scare his wife after he had found two "non-suggestive photographs" depicting her with another man. As it transpired, the photographs were "mock-ups" which had been fashioned in a photo laboratory at the Highpoint Shopping Centre in Maribyrnong. During the course of this application we have been shown the photographs concerned, and I think it is fair to say that a casual glance at them would indicate to the uninitiated that they were indeed "mock-ups" of the type which I have described. The gun which the applicant used to kill his wife was one of a pair registered to him and which he used for duck shooting. From what he told the police it would seem that he had found the photographs shortly before the shooting, and it would appear that they were the catalyst which led to the events in which the deceased was killed. The applicant had been apparently endeavouring to force his wife to disclose the identity of the man in the photographs and had, in the course of doing so, set about her with a leather belt. He had then taken the gun from a case for the purpose, so he said, of scaring the deceased, and had loaded it, apparently in her presence, with two cartridges. He had then pushed the gun into the stomach of the deceased, and, at the time when the…

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 Pashalay

Details

AGLC: R v Pashalay [1998] VSCA 18
Case: [1998] VSCA 18
Decision Date: 27 July 1998

CaseChat Overview and Summary

The matter of R v Pashalay involved an individual of Albanian background who was convicted of manslaughter by an "unlawful and dangerous act." The accused shot his wife during a domestic argument, perceiving that she had been unfaithful. The case was heard in the relevant Australian court, which was tasked with determining the appropriate sentence for the offence. The accused argued that his cultural background and the Albanian "code of dishonour" should lessen the criminality of his actions. This argument was rejected by the court.

The legal issues before the court were whether the accused's cultural background and the "code of dishonour" could be considered mitigating factors in sentencing, and whether they could reduce the criminality of the accused's actions. The court had to consider whether such cultural factors could be taken into account when determining the appropriate sentence for the offence of manslaughter by an "unlawful and dangerous act." Additionally, the court needed to evaluate the impact of the accused's background on the circumstances of the offence and whether it warranted a lesser sentence.

In its reasoning, the court found that the accused's cultural background and the "code of dishonour" did not lessen the criminality of his actions. The court held that while cultural factors may be considered in sentencing, they do not absolve the accused of responsibility for their actions. The court emphasised that the law applies equally to all individuals, regardless of their cultural background, and that the "code of dishonour" does not justify or excuse the accused's unlawful and dangerous actions. Consequently, the court dismissed the application for a reduced sentence based on cultural factors.

The court imposed a sentence on the accused, reflecting the seriousness of the offence and the need to deter similar conduct in the future. The court found that the accused's actions were a clear example of manslaughter by an "unlawful and dangerous act" and that the sentence should reflect the gravity of the offence. The court did not accept that the accused's cultural background or the "code of dishonour" could be used as a basis for reducing the sentence. The final orders of the court were that the accused be sentenced to a term of imprisonment, with specific details regarding the length of the sentence and any other conditions imposed not disclosed in the text.

Orders