R v Sharif - [2020] VSC 226

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0033

THE QUEEN
v
AHMED SHARIF	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	3 , 4 February and 16, 22 April 2020
DATE OF SENTENCE:	30 April 2020
CASE MAY BE CITED AS:	R v Sharif
MEDIUM NEUTRAL CITATION:	[2020] VSC 226

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CRIMINAL LAW – Sentence – Manslaughter by criminal negligence – By driving of a motor vehicle – Earlier attack upon vehicle by deceased and brother – Limited basis of grossly negligent driving – No aggressive intent – Motivation the subject of consideration – Offender fled scene after the event – Dishonest account to police – Plea of guilty after close of prosecution case – Some remorse – Difficult background but ongoing family support – No relevant prior convictions – COVID-19 implications – Impact upon victims – Current sentencing practices include those for culpable driving – Just punishment – Denunciation – General deterrence – Specific deterrence – Rehabilitation – Sentence of 5 years 6 months’ imprisonment with a non-parole period of 3 years 6 months – But for plea of guilty, sentence of 7 years’ imprisonment with a non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D Karamicov	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr P Doyle	Nelson Brown Legal

HIS HONOUR:

Introduction

Ahmed Sharif, you have pleaded guilty to the manslaughter of Paul Duncanson which arose from an incident in Castley Crescent, Braybrook, at about 9.30 pm on 9 December 2017. You were the driver of your Hyundai motor vehicle when it struck Mr Duncanson, seriously injuring him. He later died in hospital. You have also admitted a charge of theft contained in a criminal record filed against you.

The maximum penalty for manslaughter is imprisonment for 20 years.

Manslaughter is a category 2 offence under s 3(1) of the Sentencing Act 1991 (‘the Act’). This means that pursuant to s 5(2H) of the Act, in sentencing you I am required to impose a sentence of imprisonment upon you in the absence of the application of one of the exceptions contained in parts (a) to (e) of that subsection. It has not been submitted on behalf of you that I should do anything other than impose a term of imprisonment and set a non-parole period.

Background

The events which occurred in Castley Crescent that night were preceded by an earlier incident in the front yard of a property at 237 Ballarat Road, Braybrook in which Mr Duncanson was assaulted by a group of men associated with you. Mr Duncanson was struck to the face by one or more of the men, and was then surrounded by them in a threatening manner, as witnessed by the householder Sally Roach. The injured Mr Duncanson went to his nearby home after this event, and being aggrieved at his treatment by the men, then went out on foot in an apparent quest to…

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 Sharif

Details

AGLC: R v Sharif [2020] VSC 226
Case: [2020] VSC 226
Decision Date: 30 April 2020

CaseChat Overview and Summary

The appellant, Sharif, was convicted of manslaughter by criminal negligence following an incident where he drove his motor vehicle in a manner that resulted in the death of the deceased, who had previously attacked the vehicle with his brother. The case was heard in the Supreme Court of Victoria. The primary issue before the court was the appropriate sentence to be imposed on Sharif, considering his plea of guilty after the close of the prosecution case, his background, the absence of aggressive intent, and the impact of COVID-19 on the victims and society. The court also had to determine the role of culpable driving in current sentencing practices, alongside the principles of just punishment, denunciation, general deterrence, specific deterrence, and rehabilitation.

The court emphasised that the basis for the manslaughter charge was limited to grossly negligent driving, without any aggressive intent. The offender's motivation was considered, alongside the fact that he fled the scene and provided a dishonest account to the police. Despite Sharif's difficult background, the court acknowledged the ongoing family support he had. The absence of relevant prior convictions was noted, as well as the impact of COVID-19 on the victims and the broader community. The court recognised the need to balance the principles of sentencing, including just punishment, denunciation, general deterrence, specific deterrence, and rehabilitation. In determining the appropriate sentence, the court took into account the plea of guilty, which resulted in a sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months. The court noted that, had Sharif not pleaded guilty, the sentence would have been 7 years’ imprisonment with a non-parole period of 5 years.

The court ultimately decided on a sentence that reflected the principles of sentencing and the specific circumstances of the case. The sentence imposed recognises the offender's plea of guilty, his limited basis of grossly negligent driving, and the absence of aggressive intent. The court also considered the impact of COVID-19 on the victims and society, as well as the offender's difficult background and ongoing family support. The sentence aims to achieve the goals of just punishment, denunciation, general deterrence, specific deterrence, and rehabilitation. The court's decision provides guidance on the appropriate sentence for cases involving manslaughter by criminal negligence, particularly in the context of culpable driving and the impact of COVID-19.

Orders