R v Shambayati - [2016] QCA 121

[2016] QCA 121

COURT OF APPEAL

FRASER JA
MORRISON JA
HENRY J

CA No 127 of 2015
DC No 960 of 2014

THE QUEEN

SHAMBAYATI, Sasan Appellant

BRISBANE

THURSDAY, 5 MAY 2016

THE COURT: On 3 June 2015, the appellant was sentenced to eight months’ imprisonment with a parole release date fixed on 3 October 2015. Consistently with that sentence, the primary judge intended that the appellant would serve four months of the sentence in prison and then the next four months of the sentence on parole.

On 17 June 2015, the appellant appealed against his conviction and sentence. On 13 August 2015, upon the appellant’s application of 4 August 2015, he was released on appeal bail by a judge of the trial division. By that time, the appellant had served all but one month and 20 days in prison out of the four months required by his sentence. The appeal came on for hearing on 3 November 2015, after the parole release date of 3 October 2015.

On 19 April 2016, the court dismissed the appeal and refused the application for leave to appeal against sentence. On 21 April 2016, the respondent applied for a warrant for the arrest of the respondent with a view to the appellant serving a further period of one month and 20 days, calculated as 51 days, in prison.

The appellant has applied for orders which are designed to keep him at liberty pending the determination of a proposed application for special leave to appeal and, if special leave is granted, the determination of an appeal to the High Court against the dismissal of his appeal to this court.

A preliminary question has been agitated concerning the court’s power to set aside the parole release date fixed by the primary judge and fix a new parole release date. Upon that question, see R v Macdonald [2008] QCA 384, and R v Ball [2012] QCA 51. In the way in which the matter was argued, it is not necessary for the court to decide that question.

Ultimately, the question is whether or not a warrant should issue, notwithstanding that the parole release date is now in the past. In my opinion, it should. The statutory purpose of authorising and requiring, in specified circumstances, sentencing judges to fix a parole release date does not afford any significance to the date itself. Rather, the fixing of such date is merely a mechanism which is intended to give effect to the sentencing judge’s decision as to the just and appropriate term of imprisonment and periods to be served by the prisoner in custody and thereafter on parole in the community. Both that statutory purpose and the statutory purpose in providing for appeal bail would be defeated if the grant of appeal bail resulted in the prisoner not being obliged to serve the whole of the period of imprisonment reflected in the sentence, merely because the appeal could not come on for hearing until after a…

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 Shambayati

Details

AGLC: R v Shambayati [2016] QCA 121
Case: [2016] QCA 121
Decision Date: 5 May 2016

CaseChat Overview and Summary

The Court of Appeal was asked to decide whether the appellant, Sasan Shambayati, should be required to return to prison to complete the remaining term of his sentence after being released on appeal bail. The appellant had been sentenced to eight months in prison, with a parole release date of 3 October 2015. He was released on appeal bail on 13 August 2015, and by the time the appeal was heard on 3 November 2015, the parole release date had passed. The Court of Appeal dismissed the appeal and refused leave to appeal against the sentence. The respondent then applied for a warrant to arrest the appellant to complete the remaining term of his sentence.

The key issue before the Court of Appeal was whether it had the authority to issue a warrant for the arrest of the appellant, given that the parole release date had already passed. The Court noted that the statutory purpose of fixing a parole release date was not dependent on the date itself, but rather to give effect to the sentencing judge's decision as to the appropriate term of imprisonment and periods to be served in custody and on parole. The Court found that the statutory scheme could be interpreted in a way that allowed the chief executive to issue a parole order with a different parole release date if the term of imprisonment ceased to run as a result of the grant of appeal bail.

The Court concluded that a warrant should issue for the arrest of the appellant, as he was not entitled to be at liberty without serving the whole of the period of imprisonment reflected in the sentence. However, the respondent did not oppose deferring the execution of the warrant pending the determination of an application for special leave to appeal to the High Court. The Court made orders for a bench warrant to issue against the appellant, but to lie in the registry until the proposed application for special leave to appeal was determined, withdrawn or not proceeded with. The appellant was also required to surrender his passport, reside at a specified address, report to the police each Thursday, not contact any Crown witnesses, not commit any offences and not leave Queensland without permission.

The Court of Appeal ultimately decided that the appellant should be required to return to prison to complete the remaining term of his sentence, but deferred the execution of the warrant pending the determination of an application for special leave to appeal to the High Court. The Court also made orders for the appellant to surrender his passport, reside at a specified address, report to the police each Thursday, not contact any Crown witnesses, not commit any offences and not leave Queensland without permission.

Orders