R v Shaba, Dilan - [2010] NSWDC 34

CITATION: R v Shaba, Dilan [2010] NSWDC 34

JUDGMENT DATE:
18 January 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted.
Sentence to a non-parole period of 3 years to date form the 18th January 2010 and expire on the 17th January 2013. Balance of term of 3 years to expire on the 17th January 2016.

CATCHWORDS: Criminal Law - Sentencing - Malicious wounding with intent to inflict GBH - offender aligned with others seeking payback for earlier incident - disproportionate vigilante response - victim lured to one side by trickery - knife concealed until used - penetration through left side to kidney - surgery - long recovery period - impaired kidney function. - Criminal Law - Sentencing - Victim Impact Statement - purposes of VIS - limited to particulars of personal harm as direct result of offending conduct - offensive, threatening, intimidating, harassing material impermissible - unsworn evidence - not subject to testing - limited use when assessing criminality - VIS failed to comply - reasons given. - Criminal Law - Sentencing - Standard Non-Parole Period - after trial - mid-range of seriousness - reasons for not setting SNPP - absence of significant record - youth.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Crime (Sentencing Procedure) Regulation 2005

CASES CITED: R v Hearne (2007) 124 AcrR 457)
Tran [1999] NSWCCA 109,
R v Townsend and Cooper unreported NSWCCA, 14th February 1995.
R v James Fryar [2008] NSWCCA 171

PARTIES: Regina
Dilan Shaba

FILE NUMBER(S): 2007/00008280

COUNSEL: Crown: M Cuneen
Defence: P Hogan

JUDGMENT
1. Dilan Shaba is no stranger to the use of violence as a means to an ends. He was born in Iraq into an Assyrian Christian family. The Syrian Christians in Iraq are a minority group subject to strong ethnic/religious tensions often reaching levels of lethal violence. One of his uncles was killed in violence attributed to ethnic/religious tensions. Only the naive would believe the violence was all one way, but being a minority meant the greater risks of harm came from the majority towards the minority.

2. In high school here in Australia, or in New South Wales, violence came as part of the baggage brought by refugees. That is not to suggest there was not already too much violent activity in our metropolitan regions fomented by ethnic/religious tensions to be found between Asians, Syrians, Lebanese, islander groups attending or otherwise associated with some high schools. During his high school years at Bonnyrigg, Shaba was involved in gang related activities which included violent activities based on ethnic issues.

3. Today Dilan Shaba is to be held accountable for the malicious wounding of Carlos Sawa with intent of doing Sawa grievous bodily harm on the night of 25 February 2006 in a violent melee in Nelson Street, Fairfield. As sentencing judge it falls to me to determine the appropriate sentencing outcome for this offence upon this victim being harmed in the Fairfield community by this offender.

4. In so doing, it will be necessary to…

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 Shaba, Dilan

Details

AGLC: R v Shaba, Dilan [2010] NSWDC 34
Case: [2010] NSWDC 34
Decision Date: 18 January 2010

CaseChat Overview and Summary

In the case of R v Shaba, the respondent, Dilan Shaba, was convicted of malicious wounding with intent to inflict grievous bodily harm. The incident occurred in a context of retaliatory action by a group aligned with the offender, seeking payback for a previous incident. The victim was lured away under false pretenses and attacked with a concealed knife, resulting in significant injuries that included penetration through to the left kidney, necessitating surgery and a lengthy recovery period with impaired kidney function. The case was heard in the relevant court, which was tasked with determining the appropriate sentence for the offender.

The court was required to address several legal issues, including the appropriate weight to give to the victim impact statement, the relevance of the standard non-parole period, and the overall seriousness of the offence. Notably, the victim impact statement was found to be non-compliant as it included offensive, threatening, intimidating, and harassing material that was not directly related to the harm caused by the offending conduct. Additionally, the unsworn nature of the evidence in the statement limited its utility in assessing the criminality of the offence. The court also considered the offender's lack of a significant prior criminal record and his youth when determining the standard non-parole period.

The court deliberated on these issues and concluded that the offence, while serious, did not warrant the mid-range standard non-parole period due to the offender's lack of a significant criminal record and his youth. Instead, the court imposed a sentence with a non-parole period of three years, to be served from 18 January 2010 to 17 January 2013, followed by a balance of the term of three years, expiring on 17 January 2016. The court's reasoning emphasized the need to balance the severity of the crime with the mitigating factors presented by the offender's background.

The final orders of the court were that Dilan Shaba was convicted and sentenced to a non-parole period of three years, with the balance of the term also set at three years. The sentence was to commence on 18 January 2010 and expire on 17 January 2016.

Orders

Orders of the court

Convicted.

Sentence to a non-parole period of 3 years to date form the 18th January 2010 and expire on the 17th January 2013. Balance of term of 3 years to expire on the 17th January 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Shaba, Dilan [2010] NSWDC 34
JUDGMENT DATE:	18 January 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentence to a non-parole period of 3 years to date form the 18th January 2010 and expire on the 17th January 2013. Balance of term of 3 years to expire on the 17th January 2016.
CATCHWORDS:	Criminal Law - Sentencing - Malicious wounding with intent to inflict GBH - offender aligned with others seeking payback for earlier incident - disproportionate vigilante response - victim lured to one side by trickery - knife concealed until used - penetration through left side to kidney - surgery - long recovery period - impaired kidney function. - Criminal Law - Sentencing - Victim Impact Statement - purposes of VIS - limited to particulars of personal harm as direct result of offending conduct - offensive, threatening, intimidating, harassing material impermissible - unsworn evidence - not subject to testing - limited use when assessing criminality - VIS failed to comply - reasons given. - Criminal Law - Sentencing - Standard Non-Parole Period - after trial - mid-range of seriousness - reasons for not setting SNPP - absence of significant record - youth.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Crime (Sentencing Procedure) Regulation 2005
CASES CITED:	R v Hearne (2007) 124 AcrR 457) Tran [1999] NSWCCA 109, R v Townsend and Cooper unreported NSWCCA, 14th February 1995. R v James Fryar [2008] NSWCCA 171
PARTIES:	Regina Dilan Shaba
FILE NUMBER(S):	2007/00008280
COUNSEL:	Crown: M Cuneen Defence: P Hogan