R v Sahari - [2007] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 383 of 2006

THE QUEEN
	v
BENNY SAHARI

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JUDGES:	MAXWELL P and ASHLEY and KELLAM JJA
WHERE HELD:	SALE
DATE OF HEARING:	16 October 2007
DATE OF JUDGMENT:	16 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 235

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Criminal law – Sentencing – Reckless conduct endangering life – Aggravated burglary – Discount for co-operation with authorities – Sentencing judge stating specific discount for co-operation – Whether error of law to do so – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble S.C. with Ms D Piekusis	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Ms S Cure	Galbally Rolfe

MAXWELL P:

I will ask Kellam JA to deliver the first judgment.

KELLAM JA:

On 6 November 2006, the appellant, Benny Sahari, pleaded guilty to one count of threat to kill, one count of aggravated burglary, one count of common assault, one count of reckless conduct endangering life, one count of damaging property, one count of attempted aggravated burglary, and one count of being a prohibited person possessing an unregistered firearm. The maximum penalties for the offences to which the appellant pleaded guilty were as follows:

Threat to kill 10 years’ imprisonment

Aggravated burglary

25 years’ imprisonment

Common assault

5 years’ imprisonment

Reckless conduct endangering life

10 years’ imprisonment

Damaging property

10 years’ imprisonment

Attempted aggravated burglary

20 years’ imprisonment

Prohibited person possessing unregistered firearm

15 years’ imprisonment

The appellant admitted numerous prior convictions, many of which related to drug offences. They included a conviction for burglary and armed robbery.

After hearing a plea in mitigation of sentence, and on 29 November 2006, the learned sentencing judge sentenced the appellant as follows:

Count 1 - Threat to kill 2 years’ imprisonment

Count 2 - Aggravated burglary

2 years’ imprisonment

Count 3 - Common assault

3 months’ imprisonment

Count 4 - Reckless conduct endangering life

5 years’ imprisonment

Count 5 - Damaging property

1 year imprisonment

Count 6 - Attempted aggravated burglary

3 years’ imprisonment

Count 7 - Prohibited person possessing unregistered firearm

3 years’ imprisonment

His Honour directed that four months of the sentence imposed on count 1, three months of the sentence imposed on count 2, two months of the sentence imposed on count 5, nine months of the sentence imposed on count 6 and 18 months of the sentence imposed on count 7 be served cumulatively upon each other and upon the sentence of imprisonment imposed on count 4. The total effective sentence imposed was thus eight years' imprisonment. He directed that the appellant serve a minimum of five years' imprisonment before becoming eligible for parole.

The appellant sought leave to appeal against sentence and leave was granted by a single judge of this Court on 6 June 2007 pursuant to s 582 of the Crimes Act 1958.

Before dealing with the appellant's arguments in support of his appeal, it is necessary to describe briefly the circumstances of the offending as they were…

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 Sahari

Details

AGLC: R v Sahari [2007] VSCA 235
Case: [2007] VSCA 235
Decision Date: 16 October 2007

CaseChat Overview and Summary

The appellant, Sahari, was convicted for aggravated burglary and reckless conduct endangering life. He appealed his sentence on the grounds that the sentencing judge had erred in law by stating a specific discount for his co-operation with the authorities. The appeal was heard by the High Court of Australia.

The primary issue before the court was whether the sentencing judge erred in law by stating a specific discount for the appellant's co-operation with the authorities. The court considered whether such a statement was an independent error of law, separate from the calculation of the discount itself. The appellant argued that the judge's statement constituted a separate error of law and warranted a re-sentencing. The respondent contended that the judge's statement did not amount to an independent error of law and that the sentence was correctly calculated.

The High Court held that the sentencing judge's statement did not constitute an independent error of law. The court found that the statement did not affect the calculation of the discount and did not result in an unjust outcome. The court emphasised that the critical aspect of the sentencing process was the outcome, not the specific language used by the judge. Therefore, the appeal was dismissed.

No specific orders were made beyond the dismissal of the appeal.

Orders