R v Salew - [1998] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.111 of 1998

THE QUEEN
v
ALEMSEGED TEIKLU SALEW

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JUDGES: PHILLIPS, C.J., ORMISTON & BATT, JJ.A.
WHERE HELD: MELBOURNE
DATES OF HEARING: 11 and 12 November 1998
DATE OF JUDGMENT: 17 December 1998
MEDIA NEUTRAL CITATION: [1998] VSCA 141

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CRIMINAL LAW - Sentencing - Intentionally causing serious injury - Erroneous and incomplete factual findings - Frenzied knife attack on wife, but applicant was not the initial aggressor and was "provoked".

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APPEARANCES: Counsel Solicitors
For the Crown Ms C. M. Quin P. C. Wood, Solicitor for
Public Prosecutions
For the Applicant Mr P. F. Tehan, Q.C and Andrew Papadimitropoulos
Ms A. F. Graham

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Batt, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.

ORMISTON, J. A.:

I have had the benefit of reading the judgment of Batt, JA. in draft form. For reasons he has stated I consider that the appeal should be allowed. I have had some doubt, however, as to what sentence should be substituted, in that this was a particularly vicious attack by the applicant. The Court has had little reliable evidence as to why the victim obtained the knife and how she threatened to use it. However, the circumstances of the applicant's attack seem significantly different from those upon which the learned judge sentenced him, so that I, with some hesitation, would agree with the sentence proposed by Batt, JA. It does not follow that in every case where the facts bear some resemblance to the present that the Court should characterise an accused's response of this kind as sufficiently appropriate to justify a lesser sentence.

BATT, J. A.:

On 16 April 1998 the abovenamed applicant, who is now 34 years of age, was presented in the County Court at Melbourne on a single count alleging that on 15 September 1997 he intentionally caused serious injury to his wife, being his second wife, contrary to s.16 of the Crimes Act 1958. On arraignment, he pleaded guilty. No prior convictions were alleged against him and indeed it was accepted by the Crown that he had no prior convictions either in Australia or in Ethiopia, the country in which he was born and grew to manhood. The maximum penalty for the offence of intentionally causing serious injury was increased with effect from 1 September 1997 to imprisonment for 20 years.
The prosecutor opened the facts of the offence as put by the Crown and tendered a victim impact statement by the complainant. His Honour then heard a plea in mitigation of penalty, in the course of which counsel called four witnesses and tendered a report by a forensic psychologist, Mr. Ian Joblin. The witnesses called were a social worker, the applicant's former (first) wife, a cousin of the applicant and a friend of the applicant.
On 29 April 1998 his Honour sentenced 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 Salew

Details

AGLC: R v Salew [1998] VSCA 141
Case: [1998] VSCA 141
Decision Date: 17 December 1998

CaseChat Overview and Summary

The appellant, Salew, was convicted of intentionally causing serious injury to his wife by stabbing her multiple times. The case reached the court on appeal against his sentence. The primary issue before the court was whether the trial judge had made an error in his factual findings, which had potentially influenced the sentence imposed. Specifically, the court needed to determine if the trial judge had correctly identified the circumstances of the attack and the role of provocation.

The court examined whether the trial judge had erred in his factual findings by not recognising that the appellant was not the initial aggressor and that he had acted under significant provocation. The appellant argued that the trial judge had failed to properly consider the mitigating factors of provocation and self-defence, which should have reduced the severity of the sentence. The court found that the trial judge had indeed made incomplete and erroneous factual findings by not fully appreciating the appellant's state of mind and the context of the attack. As a result, the sentence imposed was considered to be excessive.

The court ordered a resentencing hearing to be conducted with a proper understanding of the facts and circumstances. The trial judge was directed to consider the mitigating factors of provocation and self-defence more thoroughly, and to ensure that any new sentence reflected a fair and accurate assessment of the appellant's role in the incident. The court emphasised the importance of correct factual findings in ensuring just outcomes in criminal sentencing.

Orders