R v Shev - [2005] QCA 278

[2005] QCA 278

COURT OF APPEAL

McMURDO P
JERRARD JA
DUTNEY J

CA No 177 of 2005

THE QUEEN

VADIM OLEG SHEV Applicant

BRISBANE

..DATE 11/08/2005

JUDGMENT

MR P SMITH (instructed by A W Bale & Son) for the applicant

MR M COPLEY (instructed by Director of Public Prosecutions (Queensland)) for the respondent

THE PRESIDENT: Justice Dutney will deliver his reasons first.

DUTNEY J: The applicant was convicted after a trial of one count of unlawful wounding and sentenced to two and a-half years' imprisonment to be suspended after serving nine months for an operational period of two and a-half years.

The applicant seeks an extension of time within which to seek leave to appeal against the severity of the sentence. An application for an extension of time within which to appeal against conviction has been abandoned.

The offence arose out of a neighbourhood dispute. The complainant was holding a party and playing music at what the applicant believed was an excessive volume. It appears that the party had started prior to the applicant and his wife having dinner. The applicant and his wife went for a walk after dinner. They returned and the applicant watched football on TV. The loud music continued. The applicant went down to the fence and requested that the complainant turn down the music. He was ignored.

At about 11.20 p.m. the applicant telephoned the police to complain. The police said they could not attend immediately to which the applicant responded by saying that he would take matters into his own hands. The applicant took a machete down to the fence line. He banged on the fence with the machete to attract attention. The applicant was approached by five men including the complainant. The applicant again asked for the music to be turned down. The complainant said that he would not turn the music down until midnight.

The applicant, in his interview with police, said that the complainant threw a couple of punches at him and shaped as if to jump the fence. The applicant then lashed out and struck the complainant on the head with the machete. Other witnesses denied the complainant punched at the applicant. At least one witness agreed that there had been aggression on both sides and that there were threats exchanged in both directions.

The applicant was sentenced on the basis that only one blow was delivered but that blow penetrated to the bone. The complainant made a good recovery and has been left only with a scar on his forehead and occasional headaches. He was, however, hospitalised for two days and was off work for four weeks. The applicant suffered a broken rib in the ensuing altercation.

At the trial the applicant called evidence as to his good character and reputation. One witness with whom the applicant had been in business for almost 14 years described the applicant as level-headed and a clear thinker. The applicant was 59 years old with no previous convictions. He had a degree…

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 Shev

Details

AGLC: R v Shev [2005] QCA 278
Case: [2005] QCA 278
Decision Date: 11/08/2005

CaseChat Overview and Summary

In this case, Vadim Oleg Shev sought an extension of time to appeal against the severity of his sentence for unlawful wounding. The incident arose from a neighbourhood dispute over loud music at a party. Mr Shev took a machete to the complainant's property and struck the complainant with it after the complainant refused to turn down the music. The complainant suffered a serious head injury but recovered well. The applicant was sentenced to two and a half years' imprisonment, suspended after serving nine months, with an operational period of two and a half years. The Court of Appeal was asked to determine whether the sentence was manifestly excessive.

The court considered whether the sentence imposed by the primary judge was within the range of a sound sentencing discretion. The Court acknowledged that the applicant had taken a potentially deadly weapon to the scene, which was a significant aggravating factor. The Court also noted that the applicant had not pleaded guilty or shown substantial cooperation with the administration of justice. The Court found that the sentence was not manifestly excessive and that the applicant had not demonstrated that the sentence imposed was manifestly disproportionate to the offence committed.

The Court of Appeal refused the applicant's application for an extension of time to seek leave to appeal against the severity of the sentence. The Court found that the sentence imposed was within the range of a sound sentencing discretion and that the applicant had not demonstrated that the sentence was manifestly excessive. The Court emphasised that the community could not accept the resort to violence in circumstances such as those and that the applicant should have used lawful means to settle the dispute. The Court concluded that the applicant had not established that the sentence imposed was manifestly excessive, either as to the head sentence or the minimum period in custody.

Orders