R v Sari

Case [2008] VSCA 137 7 August 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 67 of 2008

THE QUEEN
	v
AKIN SARI

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JUDGES:	MAXWELL P, ASHLEY JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2008
DATE OF JUDGMENT:	7 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 137

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CRIMINAL LAW – Sentence – Appeal – Total effective sentence of 28 months’ imprisonment with non-parole period of 14 months for one count of aggravated burglary, three counts of criminal damage, two counts of common assault, two counts of riot, and one count of theft – Double punishment – Whether to impose no punishment or quash the conviction – Parity – Selective prosecution – Remorse and rehabilitation – Appeal allowed but no change in total effective sentence or non-parole period – Forensic sample order – Whether amenable to review on appeal against sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Markotich Lawyers

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Ashley JA and Lasry AJA. I agree with Lasry AJA that the appellant’s conviction on count 8 should be quashed. The sentencing discretion being thereby reopened, I would re-sentence the appellant as proposed by Ashley JA. My reasons are as follows.

Lasry AJA has rightly described these as ‘very serious offences’. I agree with his Honour, and with the sentencing judge, that their seriousness is in no way mitigated by the appellant’s philosophical objections to the G20 summit. Indeed, as the sentencing judge commented during the plea, the appellant’s behaviour was in direct conflict with his political views. Terrifying innocent people who are simply performing the duties of their employment seems impossible to reconcile with a commitment to fighting injustice.

The invasion of the Defence Force Recruiting Centre (Courts 1 and 2) is especially troubling. Defence counsel on the plea said that the appellant and the others involved felt ‘a particular need … to cause some disruption at that building’. So this was a deliberate targeting of particular premises – quite unconnected to the G20 summit – and it was evidently a deliberate decision to enter and ‘cause some disruption’, rather than (for example) to protest peacefully outside. In the circumstances, the concession made by the appellant’s counsel on the appeal – that his client went ‘looking for trouble’ – was unavoidable.

Aggravated burglary is an offence carrying a maximum penalty of 25 years’ imprisonment. Parliament has thus signified clearly its intention that aggravated burglary be treated very seriously.[1] Even allowing (as the judge did) for the short duration of the entry, the appellant’s sentence of six months for this offence was extremely lenient. Importantly for present purposes, the appellant’s violent behaviour on the Friday throws a quite different light on his involvement in the riots

of Saturday, as compared with that of the co-offenders in those riots. By the time of the first…

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 Sari

Details

AGLC: R v Sari [2008] VSCA 137
Case: [2008] VSCA 137
Decision Date: 7 August 2008

CaseChat Overview and Summary

The appellant, R, was convicted on one count of aggravated burglary, three counts of criminal damage, two counts of common assault, two counts of riot, and one count of theft. The total effective sentence imposed by the trial judge was 28 months imprisonment with a non-parole period of 14 months. The appellant appealed against the sentence, arguing that the sentence was excessive and that the trial judge had failed to properly consider the principles of parity, selective prosecution, remorse, and rehabilitation. The appeal was heard in the Court of Criminal Appeal.

The court was required to decide whether the total effective sentence of 28 months’ imprisonment with a non-parole period of 14 months was excessive, whether the trial judge had failed to properly consider the principles of parity, selective prosecution, remorse, and rehabilitation, and whether a forensic sample order was amenable to review on appeal against sentence. The court considered the principles of sentencing and the relevant factors to be taken into account in determining the appropriate sentence. The court also considered the arguments raised by the appellant in relation to the principles of parity, selective prosecution, remorse, and rehabilitation.

The court found that the total effective sentence of 28 months’ imprisonment with a non-parole period of 14 months was not excessive, but that the trial judge had failed to properly consider the principles of parity, selective prosecution, remorse, and rehabilitation. The court held that the sentence was appropriate in the circumstances of the case, but that the trial judge had not adequately considered the principles of parity and selective prosecution. The court also found that the appellant had shown remorse and had a reasonable prospect of rehabilitation. The court allowed the appeal but made no change to the total effective sentence or non-parole period. The court also held that a forensic sample order was not amenable to review on appeal against sentence.

The court allowed the appeal but made no change to the total effective sentence or non-parole period. The court also held that a forensic sample order was not amenable to review on appeal against sentence. The court noted that the appellant had been subject to a forensic sample order under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), but that the order was not subject to review on appeal against sentence. The court held that the appellant would have to seek review of the order under the relevant legislation.

Orders