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R v Shashati

R v Shashati

Case [2018] NSWCCA 167 3 August 2018

Sentencing

Aggravated Dangerous Driving

Manifestly Inadequate Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Shashati [2018] NSWCCA 167
Hearing dates: 27 June 2018
Decision date: 03 August 2018
Before: Basten JA at [1];
Wilson J at [67];
Lonergan J at [68]
Decision:
(1)   Allow the Director’s appeal and set aside the sentence imposed in the District Court.
(2)   Resentence the respondent as follows:
(a)   Impose a sentence of imprisonment for 6 years comprising a non-parole period of 3 years 3 months and a balance of the term of 2 years 9 months;
(b)   The sentence commenced on 6 April 2018 and will expire on 5 April 2024;
(c)   The non-parole period expires on 5 July 2021, which is the date on which the offender is first eligible for release on parole.
Catchwords:
SENTENCING – aggravated dangerous driving causing death – whether episodes of erratic driving before accident relevant to assessment of objective seriousness – manifest inadequacy
SENTENCING – prosecution appeal against inadequacy of sentence – aggravated dangerous driving causing death – sentence manifestly inadequate – discretion to intervene – importance of adequacy and consistency of sentencing with respect to dangerous driving offences
Legislation Cited: Crimes Act 1900 (NSW), s 52A
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: Bombardieri v R [2010] NSWCCA 161
Gommesen v R [2012] NSWCCA 226; 62 MVR 196
Hei Hei v R; R v Hei Hei [2009] NSWCCA 87; 52 MVR 473
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Elkassir [2013] NSWCCA 181; 233 A Crim R 411
R v Jurisic (1998) 45 NSWLR 209
R v Millwood [2012] NSWCCA 2
R v Ryan [2003] NSWCCA 202; 141 A Crim R 403
R v Scott [2003] VSCA 55; 141 A Crim R 323
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
R v Wright [2013] NSWCCA 82; 229 A Crim R 245
Regina v Ammar Elrifai [2002] NSWCCA 496
Regina v David Berg [2004] NSWCCA 300; 41 MVR 399
Regina v Manok [2017] NSWCCA 232; 81 MVR 427
Smith v R [2011] NSWCCA 290
Category: Principal judgment
Parties: Director of Public Prosecutions (Appellant)
Robert Gawdat Shashati (Respondent)
Representation:
Counsel:
Mr D Kell SC/Mr M Pulsford (Appellant)
Ms G Bashir SC (Respondent)
Solicitors:
Office of Director of Public Prosecutions (Appellant)
Anderson Lawyers (Respondent)

File Number(s): 2015/88328
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

06 April 2018

Before:

Maiden SC DCJ

File Number(s):

2015/88328

Judgment

BASTEN JA: On 6 April 2018 the respondent was sentenced in the District Court on a charge of aggravated dangerous driving occasioning death, being an offence under s 52A(2) of the Crimes Act 1900 (NSW). The sentencing judge (Maiden SC DCJ) imposed a non-parole period of 2 years 3 months with an additional term of 2 years 3 months, giving an overall sentence of 4 years 6 months. The sentence was fixed 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 Shashati

Details

AGLC: R v Shashati [2018] NSWCCA 167
Case: [2018] NSWCCA 167
Decision Date: 03 August 2018

CaseChat Overview and Summary

The case of R v Shashati involved the defendant, Shashati, who was convicted of aggravated dangerous driving causing death. The court was tasked with determining whether prior episodes of erratic driving by the defendant were relevant to the assessment of the objective seriousness of the offence and whether the sentence imposed was manifestly inadequate. This appeal by the prosecution focused on the sentencing aspect, particularly whether the sentence was manifestly inadequate, and if the court had discretion to intervene to ensure adequacy and consistency in sentencing for such offences.

The central legal issue in this appeal was whether the trial judge's sentencing of the defendant was manifestly inadequate. The prosecution argued that the episodes of erratic driving prior to the fatal accident were relevant to the objective seriousness of the offence and should have been considered in the sentencing process. The appeal also challenged the adequacy of the sentence imposed, asserting that it did not reflect the gravity of the offence and the need for deterrence and denunciation.

The court found that the trial judge had erred by not considering the prior episodes of erratic driving, which were relevant to the objective seriousness of the offence. The court held that the sentence imposed was manifestly inadequate and exercised its discretion to intervene. The court emphasised the importance of adequate and consistent sentencing for dangerous driving offences to achieve the objectives of deterrence and denunciation. Consequently, the sentence was increased to reflect the seriousness of the offence and to ensure consistency with other cases involving similar offences.

The final orders of the court were to increase the sentence of the defendant to reflect the objective seriousness of the offence and to ensure consistency in sentencing for dangerous driving causing death. The court's intervention aimed to uphold the principles of justice and to maintain public confidence in the sentencing process for such serious offences.

Orders