R v Shahi - [2008] VSCA 281

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 291 of 2007

THE QUEEN

RAJBINDER SINGH SHAHI

and

No 330 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

RAJBINDER SINGH SHAHI

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JUDGES:	BUCHANAN, VINCENT JJA AND ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 December 2008
DATE OF JUDGMENT:	19 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 281

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CRIMINAL LAW - Whether sentence manifestly excessive – factual error in sentencing – leave to reinstate appeal granted – leave to appeal refused.

CRIMINAL LAW – Sentencing – Crown appeal – Manslaughter, threat to kill, threat to inflict serious injury – Whether sentencing judge erred in concluding that respondent could not have known deceased was a particularly vulnerable victim – Whether sentencing judge had proper regard to statutory increase in the maximum penalty for manslaughter – Whether sentencing judge erred in taking into account culpable driving cases – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant/Respondent	Mr P F Tehan QC	Theo Magazis & Assocs
with Mr C B Boyce

BUCHANAN JA:

I agree with Robson AJA.

VINCENT JA:

I agree that leave should be granted to reinstate the application for leave to appeal against sentence, but in this matter I would refuse leave to appeal. I do so for the reasons given by Robson AJA. I also agree that the appeal by the Director of Public Prosecutions should be dismissed and again for the reasons given by his Honour.

ROBSON AJA:

Introduction

On 4 September 2007, Mr Shahi, the respondent to the Director’s appeal (and applicant in the application to cross-appeal) was sentenced to nine years’ imprisonment for manslaughter, twelve months’ imprisonment for threat to kill and twelve months’ imprisonment for threat to inflict serious injury, each of the latter two being ordered to be served concurrently as to nine months with the nine years imposed for manslaughter. The effective head sentence was nine years and six months, and the sentencing judge set a non-parole period of six years.

The respondent had been charged with the murder of Xavier Salmon to which he pleaded not guilty and on which he was convicted of manslaughter. He pleaded guilty to the threat to kill his daughter and the threat to inflict serious injury to his wife.

The grounds of appeal pressed on behalf of the Director were:

(1) The sentences imposed on each count in total are each manifestly inadequate.

(2) The learned sentencing judge erred in reaching the following conclusion -

(b) that the respondent could not have known that because of the deceased’s over-consumption of alcohol, he was a particularly vulnerable victim.

In counsel for the Director’s oral submissions, he argues that there were two further sentencing errors made by the sentencing judge:

(1) The sentencing judge did not have proper regard to the increase in the maximum penalty for manslaughter from fifteen years to twenty years.

(2) The sentencing judge took…

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 Shahi

Details

AGLC: R v Shahi [2008] VSCA 281
Case: [2008] VSCA 281
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the matter of R v Shahi, the respondent was convicted of manslaughter, threatening to kill, and threatening to inflict serious injury. The Crown appealed the sentence, asserting that it was manifestly excessive and that the sentencing judge had erred in several respects. The High Court of Australia was tasked with considering the Crown's appeal and the respondent's application for leave to appeal. The High Court's decision involved determining whether the sentencing judge erred in concluding that the respondent could not have known the deceased was a particularly vulnerable victim, whether the sentencing judge had proper regard to the statutory increase in the maximum penalty for manslaughter, and whether the sentencing judge erred in taking into account culpable driving cases. The High Court found that the sentencing judge did not err in concluding that the respondent could not have known the deceased was a particularly vulnerable victim, and that the sentencing judge had proper regard to the statutory increase in the maximum penalty for manslaughter. However, the High Court found that the sentencing judge erred in taking into account culpable driving cases, but this did not result in a manifestly excessive sentence. Consequently, the High Court granted leave to reinstate the appeal but refused leave to appeal, and the appeal was dismissed.

Orders