R v Shambayati - [1999] QCA 102

IN THE COURT OF APPEAL [1999] QCA 102
SUPREME COURT OF QUEENSLAND
C.A. No. 418 of 1998
Brisbane
[R v Shambayati]
THE QUEEN
v
SASAN SHAMBAYATI

(Applicant) Appellant
Pincus JA Davies JA Thomas JA

Judgment delivered 1 April 1999
Judgment of the Court
APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND
APPEAL AGAINST SENTENCE ALLOWED. ORDER AS TO SENTENCE MADE
BELOW SET ASIDE AND IN LIEU SUBSTITUTE AN ORDER THAT THE
APPELLANT BE RELEASED, WITHOUT PASSING SENTENCE ON HIM, UPON HIS
GIVING SECURITY BY RECOGNIZANCE IN THE SUM OF $2,000 TO BE OF GOOD
BEHAVIOUR FOR A PERIOD OF 12 MONTHS.

CATCHWORDS:

CRIMINAL LAW - Sentence - appellant convicted of federal offence and released upon his giving a recognizance conditioned on the performance of community service pursuant to s 20 Crimes Act 1914 (Cth) - whether community service may be imposed as a condition under s 20(1)(a)(iv).
CRIMINAL LAW - Procedure - fair trial.
Adams v Carr (1987) 26 A Crim R 372
Crimes Act 1914 (Cth) ss 20, 20AB
Penalties and Sentences Act 1992 s 106
Counsel: Appellant/applicant appeared on his own behalf
Mr P J Callaghan for the respondent
Solicitors: Appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent
Hearing Date: 25 March 1999
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 1 April 1999

The appellant was convicted in the District Court on 21 October 1998 of an offence of intentionally and knowingly threatening an officer of the Australian Taxation Office, who was then carrying out his duty as such, on 12 November 1997. He was ordered to be released upon his giving security by way of a recognizance in the sum of $2,000 to be of good behaviour for a period of two years and to perform a total of 50 hours community service. He appeals against his conviction and seeks leave to appeal against that order.
The evidence on which the jury found the appellant guilty was that of the officer concerned and two other officers of the Australian Taxation Office. According to the first of these the appellant attended the Upper Mount Gravatt branch of the Office on 12 November 1997 for the purpose of an interview with him related to matters the subject of a court appearance the following day. The appellant attempted to provide him with some statutory declarations but the officer declined to accept them and indicated that the matter would proceed in court the following day. At that point, according to him the appellant became aggressive and said to him: "I'll wait for you outside". He also threatened him in the following terms: "I'll bury you"; "I've put bigger people than you under"; and "If you fuck me, I'll fuck you".
A second officer also heard the appellant say, in a raised voice "I'll bury you" but did not hear the other phrases of which the first officer gave evidence. A third officer heard the appellant say "If you fuck…

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 [1999] QCA 102
Case: [1999] QCA 102
Decision Date: 1/04/1999

CaseChat Overview and Summary

In this matter, the appellant was convicted of a federal offence and subsequently released on recognizance, which included a condition for the performance of community service. The appellant, Shambayati, contested the validity of this condition under section 20(1)(a)(iv) of the Crimes Act 1914 (Cth). The case was heard and determined by the High Court of Australia, which was tasked with deciding the legality of imposing community service as a condition of recognizance.

The primary legal issue before the court was whether the imposition of community service as a condition of recognizance under section 20(1)(a)(iv) of the Crimes Act 1914 (Cth) was permissible. The court had to interpret the scope of the legislation to determine whether such a condition could be imposed upon an individual who had been granted recognizance following a conviction for a federal offence. This required an examination of the statutory language and the intent behind the provision of recognizance.

The court, through its interpretation, found that the imposition of community service as a condition of recognizance was not permissible under the relevant section of the Crimes Act 1914 (Cth). The court concluded that the statutory language did not support the inclusion of such a condition and that the intent behind the provision of recognizance did not extend to the imposition of community service as a condition. As a result, the condition was deemed invalid, and the court set aside the order that had imposed the community service requirement.

The court's decision resulted in the nullification of the condition mandating community service for the appellant. The court did not impose any further penalties or conditions in place of the invalid condition, effectively leaving the recognizance as it was prior to the imposition of the invalid condition.

Orders