R v Zandipour - [2016] VSC 387

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0073

THE QUEEN

KYLE ZANDIPOUR

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2016
DATE OF SENTENCE:	12 July 2016
CASE MAY BE CITED AS:	R v Zandipour
MEDIUM NEUTRAL CITATION:	[2016] VSC 387

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CRIMINAL LAW – Sentence – Murder – Brutal attack on stranger late at night on city street – Kicks to head and neck causing vertebral artery to tear – No attempt to assist the victim or ascertain whether he was injured – Some remorse – Limited prior convictions – Good prospects of rehabilitation – Importance of general deterrence for offending of this kind – Sentenced to 20 years’ imprisonment with 16 years non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney SC	Office of Public Prosecutions
For the Accused	Mr R. van de Wiel QC	Defteros Lawyers

DRAFT

HER HONOUR:

Kyle Zandipour, you have been found guilty of the murder of Joshua Hardy on 18 October 2014 in Melbourne. You were arrested later that day, following your attendance, as requested, at the St Kilda Road Police Station in the company of your solicitor. You have been held in custody since that day.

You pleaded not guilty to murder, and you were initially tried before a jury in February of this year. That jury was unable to reach a verdict on the charge of murder. The jury in a second trial, which commenced on 16 May 2016, delivered a verdict of guilty.

Between the first and second trials, you offered to plead guilty to a charge of manslaughter. That offer was made in open court. This is said to be an indication of your remorse and your preparedness to take responsibility for your actions.

You are now 29 years old. At the time of the offence, you were 27 years old and lived in an apartment on St Kilda Road with your fiancée. You were employed as a commercial banker in the ANZ Bank.

On Friday, 17 October 2014, you had arranged to meet after work with an old school friend, Matthew Bell. You spent the evening quietly at your apartment with your fiancée and Mr Bell. Your fiancée went to bed early. You and Bell played PlayStation and drank alcohol late into the night. Although Bell consumed the best part of half a bottle of vodka, there is nothing to suggest that you drank other than moderately.

Just before 1.00am, the two of you decided that you were hungry and you went to the nearby McDonald’s restaurant on St Kilda Road for a late night snack. You purchased food inside and then went to the outdoor eating area to eat. There were two or three tables outside, but no chairs, so you and Bell leant up against one of the tables, looking out onto St Kilda Road. You quietly and, apparently contentedly, ate your food.

At approximately 1.03am, the deceased, Joshua Hardy, arrived…

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 Zandipour

Details

AGLC: R v Zandipour [2016] VSC 387
Case: [2016] VSC 387
Decision Date: 12 July 2016

CaseChat Overview and Summary

The case of R v Zandipour involved the defendant who was convicted of murder after a brutal attack on a stranger late at night on a city street. The attack involved a series of kicks to the head and neck of the victim, causing a tear in the victim's vertebral artery which resulted in his death. Zandipour did not attempt to assist the victim or ascertain whether he was injured. The case came before the court for sentencing, with the primary focus being on the appropriate punishment for this heinous crime. The court was required to balance the severity of the crime, the defendant's lack of remorse and failure to assist the victim, his limited prior convictions, and his potential for rehabilitation, while also considering the need for general deterrence for such offences.

The key legal issues the court had to address included determining the appropriate sentence for a crime of this nature, taking into account the circumstances of the offence and the character of the offender. The court had to weigh the gravity of the crime, the defendant's level of culpability, and the need for both specific and general deterrence in arriving at a sentence. Additionally, the court had to consider the impact of the crime on the victim and his family, as well as the potential for the defendant's rehabilitation and reintegration into society. The court also had to determine the appropriate non-parole period to ensure that the sentence adequately served the purposes of punishment, deterrence, and rehabilitation.

The court, in delivering its judgment, found that the offence was of significant gravity due to the brutality and randomness of the attack, which caused the death of an innocent stranger. The court noted that the defendant showed some remorse but failed to assist the victim or check on his condition after the attack. The court also acknowledged the defendant's limited prior criminal history and potential for rehabilitation. However, the court emphasised the paramount importance of general deterrence in cases of this kind to protect the community from such senseless violence. Considering all these factors, the court sentenced Zandipour to 20 years' imprisonment with a non-parole period of 16 years, reflecting the gravity of the offence and the need for both punishment and deterrence.

The court's final orders included the imposition of a 20-year sentence for murder with a non-parole period of 16 years, ensuring that the defendant would serve a significant period in prison before becoming eligible for parole. The court's decision underscored the importance of a robust response to violent crimes to protect the community and deter future offences of a similar nature.

Orders