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R v Sherwani

R v Sherwani

Case [2017] VSC 147 31 March 2017

Contempt of Court

Sentencing

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2016 03918

THE QUEEN (ON THE APPLICATION OF THE REGISTRAR OF THE COUNTY COURT OF VICTORIA)	Applicant
v
HAWRE SHERWANI	Respondent

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2017
DATE OF JUDGMENT:	31 March 2017
CASE MAY BE CITED AS:	R v Sherwani
MEDIUM NEUTRAL CITATION:	[2017] VSC 147

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CONTEMPT – Contempt of Court – Sentence – Respondent refused to answer questions by falsely asserting an inability to remember when subpoenaed to attend on a voir dire in the trial of co-accused – Contempt admitted – Sentence of four months’ imprisonment – Sentencing Act1991 ss 5, 6AAA, 11, 14, 15, 16, 17, 18 – Supreme Court (General Civil Procedure) Rules 2015 O 75.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Dinelli	Victorian Government Solicitor
For the Respondent	Mr S Johns	Theo Magazis & Associates

HIS HONOUR:

Introduction

The current contempt proceedings were brought against the respondent, Mr Sherwani, in this Court on 23 September 2016, on the application of the Registrar of the County Court of Victoria. In its originating motion, the applicant claims that the respondent refused to answer questions asked of him in the County Court on 18 July 2016 by falsely asserting an inability to remember.[1] By written submissions dated 5 December 2016, the respondent admitted guilt to the charge of contempt.[2] As such, when the matter came before me on 8 February 2017, the only matter left for determination was the question of what sentence would be appropriate in the circumstances.
[1]Originating Motion Between parties dated 23 September 2016, 2.
[2]‘Respondent’s Submission’ dated 5 December 2016.

Before imposing a sentence, I shall first turn to the background of the matter, followed by the relevant sentencing considerations for the offence of contempt.

Background

On 11 July 2016, the respondent pleaded guilty to one charge of recklessly causing serious injury in relation to an attack on a man on 21 July 2014. On 14 July 2016, he was sentenced in the County Court of Victoria to six years’ imprisonment with a non-parole period of four years for the attack. The attack is alleged to have involved a co-offender, Mr Meyer.

In answer to a subpoena dated 6 July 2016, the respondent appeared as a witness on a voir dire in the trial of Mr Meyer before her Honour, Judge Hampel, in the County Court of Victoria on 18 July 2016. Once sworn to provide his evidence, the respondent proceeded to respond to each question posed by the prosecution that he could not recall anything relating to the attack. Upon being shown photographs under examination, the respondent asserted that he could not see properly, and continued to assert that he could not recall anything. Her Honour warned the respondent that his conduct constituted contempt of court and provided him an opportunity to purge his contempt by properly engaging with the questions asked of him, and…

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 Sherwani

Details

AGLC: R v Sherwani [2017] VSC 147
Case: [2017] VSC 147
Decision Date: 31 March 2017

CaseChat Overview and Summary

The case of R v Sherwani involved the respondent, Sherwani, who was found in contempt of court after refusing to answer questions during a voir dire hearing in the trial of a co-accused. Sherwani claimed an inability to remember when subpoenaed to attend, and this led to the contempt charge. The matter was heard and determined in the Supreme Court of Victoria. The primary legal issue before the court was the appropriate sentence for the contempt of court committed by Sherwani. The court had to consider various statutory provisions and relevant case law to determine a suitable penalty.

The court examined the statutory framework, including sections 5, 6AAA, 11, 14, 15, 16, 17, and 18 of the Sentencing Act 1991, as well as the Supreme Court (General Civil Procedure) Rules 2015 O 75. The court noted the seriousness of the contempt and the need to uphold the integrity of the judicial process. Sherwani's conduct was found to be deliberate and to have significantly disrupted the proceedings, warranting a custodial sentence. In determining the length of the sentence, the court considered factors such as the gravity of the offence, the need for deterrence, and the importance of maintaining public confidence in the legal system.

After thorough consideration, the court sentenced Sherwani to a term of four months' imprisonment. The decision underscored the court's commitment to ensuring that contempt of court is met with appropriate consequences. The sentence was deemed sufficient to achieve the desired outcomes of punishment, deterrence, and upholding the authority of the court.

Orders