JUDGES	NETTLE and REDLICH JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 September 2009
DATE OF JUDGMENT	25 September 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 217
JUDGMENT APPEALED FROM	R v Shafik-Eid, (Unreported 19 August 2008, County Court of Victoria, Judge Patrick)

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CRIMINAL LAW – Appeal against sentence – Reckless conduct endangering life – Threats to kill – Possession of handgun – Possession of drug of dependence – Conflicting orders for cumulation made – Appeal allowed – Appellant resentenced to same total effective sentence – Psychological instability – Drug addiction – Nexus not established between mental condition and commission of offences – Consideration of the principles in R v Verdins (2007) 16 VR 269 – Foreknowledge of effects of methylamphetamine.

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Appearances:	Counsel	Solicitors
For the Crown	Mr D A Trapnell, SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C G Mandy	Slades & Parsons

NETTLE JA:

I agree for the reasons given by Lasry AJA, with the order he proposes and otherwise that the appeal be dismissed.

REDLICH JA:

I agree with Lasry AJA that the second order for cumulation should be amended as he proposes. I also agree for the reasons he gives that the appeal should be dismissed.

LASRY AJA:

On 2 April 2008 the appellant pleaded guilty to three counts of reckless conduct endangering life, two counts of threat to kill, one count of possessing a registered general category handgun not being a collector or licensed, one count of possession of a firearm on which a serial number had been altered, and one count of possession of a drug of dependence.

On 19 August 2008 the appellant was sentenced in the County Court as follows. On Count 1, a count of reckless conduct endangering life, he was sentenced to 18 months’ imprisonment. On Count 2, also a count of reckless conduct endangering life, he was sentenced to 28 months’ imprisonment. On Count 3, a count of threat to kill, he was sentenced to 18 months’ imprisonment. On Count 4, a count of reckless conduct endangering life, he was sentenced to 28 months’ imprisonment. On Count 5, a count of threatening to kill, he was sentenced to 18 months’ imprisonment. On Count 6, being a count of possession of a registered handgun without a licence, he was sentenced to 12 months’ imprisonment. On Count 7, being a count of possession of a firearm on which the serial number had been defaced, he was sentenced to three months’ imprisonment. On Count 8, being a count of possession of a drug of dependence, namely methylamphetamine, he was convicted and fined $300.

The sentence on Count 2, being a sentence of 28 months’ imprisonment, was the base sentence. Six months of each of the sentences on Counts 1, 3 and 6 were to be served cumulatively on each other and on the sentence…

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 Shafik-Eid

Details

AGLC: R v Shafik-Eid [2009] VSCA 217
Case: [2009] VSCA 217
Decision Date: 25 September 2009

CaseChat Overview and Summary

In the case of R v Shafik-Eid, the appellant was convicted of various offences including reckless conduct endangering life, threats to kill, and possession of a handgun and a drug of dependence. The matter was brought before the court on appeal against the sentence imposed. The appellant argued that the original sentence was excessive and that certain factors, including his psychological instability and drug addiction, were not adequately considered by the trial judge. The court was required to determine whether the original sentence was appropriate and whether the appellant's mental condition and addiction should have been taken into account in a more nuanced manner.

The legal issues before the court included the appropriate weight to be given to the appellant's mental health and drug addiction in sentencing, as well as the principles to be applied when determining the cumulative effect of multiple offences. The court considered the principles established in R v Verdins, which provide guidance on the sentencing of offenders with mental health issues and drug dependencies. The court also examined whether the appellant had a sufficient understanding of the effects of methylamphetamine at the time of the offences, as this was relevant to the assessment of his culpability.

The court found that while the appellant's mental health and drug addiction were significant factors, they did not establish a sufficient nexus with the commission of the offences to warrant a reduction in sentence. The court held that the trial judge had appropriately considered these factors but had made conflicting orders regarding the cumulation of sentences. The court allowed the appeal and resentenced the appellant to the same total effective sentence, taking into account the principles in R v Verdins and the appellant's foreknowledge of the effects of methylamphetamine. The court concluded that the original sentence was appropriate and did not require modification.

The final orders of the court were that the appeal against sentence was allowed, and the appellant was resentenced to the same total effective sentence previously imposed. The court emphasised the importance of considering the offender's mental health and drug addiction in sentencing, but found that these factors did not warrant a reduction in the sentence in this case. The court also noted that the appellant had a sufficient understanding of the effects of methylamphetamine, which was relevant to the assessment of his culpability.

Orders