R v Shahabi - [2003] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

Nos. 215 of 2002
218 of 2002
219 of 2002

THE QUEEN

MUSTAFA SHAHABI

HARPREET AHLUWALIA
SANDEEP SINGH SALARIA

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 July 2003
DATE OF JUDGMENT:	15 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 108

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Criminal law - Sentence - Armed robbery - Youthful offenders - Not immature - Mitigating factors taken into account in determining concurrency of sentences and also in fixing individual sentences - Sentences of six years' with minimum terms of three years and nine months not manifestly excessive.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr P.A. Coghlan, Q.C., D.P.P.
Mr T.P. Burke

K. Robertson, Solicitor for Public Prosecutions

For the Appellant Shahabi

For the Appellant Ahluwalia

For the Appellant Salaria

Mr K.G. McGowan

Mr G.J. Thomas

Mr G. Gilbert

Paul A. Vale Pty.

Victoria Legal Aid

Kelvin R. Leggs

WINNEKE, P.:

I have had the opportunity of reading the reasons for judgment of Buchanan, J.A. I agree, for the reasons which his Honour gives, that these appeals should be dismissed. The sentences which his Honour imposed upon each of these young men were well within the range of sentences open to his Honour having regard to the gravity of the successive and violent armed robberies carried out, in company, upon vulnerable and defenceless victims. Although each of these young men acted on this night in a manner which was inconsistent with his established character, it was necessary, as the experienced trial judge noted, to impose sentences which properly reflected principles of general deterrence and to manifest the court’s denunciation of the gravity of the appellants’ conduct. I agree with Buchanan, J.A. that, although some of the sentencing remarks made by his Honour were infelicitous, it is apparent that, when read in context, they do not amount to sentencing error re-opening the sentencing discretion. Even if they did, I do not think that any different sentences from those which his Honour imposed should have been passed.

CALLAWAY, J.A.:

I agree with Buchanan, J.A., for the reasons his Honour gives, that these appeals should be dismissed. Like the learned President, I would not have intervened even if specific error had been shown.

BUCHANAN, J.A.:

In the early hours of 7 October 2001 the appellants robbed two taxi drivers in order to obtain money to pay rent to the landlord of Ahluwalia and Salaria.

The appellants first hailed a taxi in Malvern and were driven to a street in Oakleigh. When the taxi stopped one of the appellants placed a knife next to the driver's throat. Another appellant emptied the driver's pockets, taking some $370 and a cab-charge slip and $30 from a coin container. The appellants taped the

driver's head to the headrest of his seat, the tape covering his eyes, and taped his fingers together. The appellants fled on foot. They took the car keys and threw them away.

The proceeds of the crime…

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 Shahabi

Details

AGLC: R v Shahabi [2003] VSCA 108
Case: [2003] VSCA 108
Decision Date: 15 August 2003

CaseChat Overview and Summary

The appellant was convicted of armed robbery, along with an accomplice, and was sentenced to six years' imprisonment with a non-parole period of three years and nine months. The case was appealed on the grounds that the sentencing was manifestly excessive. The appeal was heard by the High Court of Australia, which had to decide whether the sentence was too severe, given the mitigating factors presented.

The central issue before the court was whether the sentence imposed on the appellant was manifestly excessive, taking into account his age at the time of the offence and the mitigating factors. The court had to weigh the severity of the crime against the appellant's age, which was 18 at the time of sentencing, and consider whether the sentences were concurrently served or served consecutively. The court also had to assess whether the mitigating factors, such as the appellant's remorse and the influence of his accomplice, were adequately taken into account in determining the sentence.

The court held that the appellant was not immature at the time of the offence, and the mitigating factors were adequately considered in determining both the concurrency of the sentences and the individual sentences. The court concluded that the sentences of six years' with a non-parole period of three years and nine months were not manifestly excessive. The appeal was therefore dismissed.

The court did not order any change to the sentence. The appellant's conviction and sentence were upheld, and the appeal was dismissed.

Orders