R v Zefi

Case [2017] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ZEFI; R v JAKAJ

[2017] SASCFC 121

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)

22 September 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE

Appeal against sentence for manslaughter.

David Zefi was sentenced to imprisonment for eight years and 10 months with a non-parole period of six years and 10 months. Rrok Jakaj was sentenced to imprisonment for five years and three months with a non-parole period of four years and one month.

Mr Zefi appeals against his sentence on the grounds that:

1.      he was sentenced on an incorrect factual basis, namely that he was not acting for a defensive purpose and that he introduced the knife into the fatal fight;

2.      the Judge erred in finding that there were no special circumstances to reduce the non-parole period to less than four fifths of the head sentence; and

3.      the Judge erred in declining to give him credit for his offer to plead guilty to manslaughter.

Mr Jakaj appeals on the grounds that:

1.      he was sentenced on an incorrect factual basis, namely that Mr Zefi was not acting for a defensive purpose and that Mr Zefi introduced the knife into the fatal fight;

2.      the Judge erred in declining to give him credit for his offer to plead guilty to manslaughter;

3.      the Judge, when considering the question of contrition, erred in referring to the significant resources dedicated to his defence;

4.      the Judge failed to give appropriate consideration to the appellant’s contrition;

5.      the Judge failed to have regard to numerous character references; and

6.      his sentence should be reduced to take into account the additional time he spent on home detention bail pending appeal outcomes.

Held (the Court), dismissing Mr Zefi's appeal:

1.      It was open for the Judge to find that Mr Zefi introduced the knife into the fight and that he was not acting for a defensive purpose.

2. There were not special circumstances under s 32(A)(3) of the Criminal Law Criminal Law (Sentencing) Act 1988 to reduce Mr Zefi’s non-parole period to below four fifths of the head sentence.

3.      It was open to the Judge to find that Mr Zefi’s offer to plead guilty was not indicative of contrition or remorse nor did it offer any significant utilitarian benefit, and therefore no weight should be given to it.

Held (the Court), allowing Mr Jakaj's appeal:

4.      It was open to the Judge to find that Mr Jakaj’s offer to plead…

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R v Zefi [2017] SASCFC 121
Case
[2017] SASCFC 121
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CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Blue and Lovell JJ, heard appeals from Mr Zefi and Mr Jakaj concerning their sentences for offences related to a homicide. Mr Jakaj appealed his sentence of five years and three months imprisonment with a non-parole period of four years and one month.

The court was required to determine several grounds of appeal, including whether the sentencing judge erred in considering the significant resources marshalled by Mr Jakaj in his defence, in their assessment of his contrition and remorse, and in giving insufficient credit for his early and continuing offer to plead guilty to manslaughter. Additionally, the court considered whether the sentencing judge erred in finding that Mr Zefi introduced the knife and that self-defence played no role in his actions, and whether special reasons existed to fix a shorter non-parole period for Mr Jakaj.

Regarding Mr Jakaj's offer to plead guilty to manslaughter, the court noted that while the offer was not reduced to writing and a factual basis was not resolved, it was submitted to be a genuine offer made early in the proceedings. The court acknowledged that the legal principles concerning pre-trial offers to plead guilty had been set out earlier in the judgment. The court also addressed ground 7, concerning the finding that Mr Zefi introduced the knife and that self-defence played no role, stating that for reasons articulated in Mr Zefi's appeal, it was open to the sentencing judge to make that finding and therefore this ground of appeal was rejected.

The court ultimately dismissed Mr Zefi's appeal. For Mr Jakaj, the court rejected grounds of appeal concerning the sentencing judge's consideration of defence resources and contrition. The court also rejected the ground of appeal concerning the sentencing judge's finding that Mr Zefi introduced the knife and that self-defence played no role. The court's decision on the remaining grounds, including the credit for the offer to plead guilty and the existence of special reasons for a shorter non-parole period, would have been detailed in the full judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

No error has been demonstrated. We reject this ground of appeal. Conclusion We dismiss the appeal by Mr Zefi.Mr Jakaj’s appeal against sentence Mr Jakaj was sentenced to a term of imprisonment of five years and three months with a non-parole period of four years and one month. On appeal against sentence only five of the original nine grounds of appeal were maintained. With respect to their numbering in the original Schedule of Grounds of Appeal, the extant grounds are:3The Learned Sentencing Judge erred in having regard in a way adverse to the Applicant Jakaj “the significant resources marshalled by you in an attempt to secure each of you an underserved acquittal” despite the fact that those same resources secured an acquittal for murder.…5The Learned Sentencing Judge erred in respect of the consideration of the Applicant’s contrition in particular by characterizing it as “statements made two years or so later by your counsel” but also by;a. Not having regard to the numerous character references tendered by consent which recount the Applicant Jakaj’s expressions of remorse; andb. Not having regard to the Applicant Jakaj’s offer to apologize in person to the father of the Deceased.6The Learned Sentencing Judge erred in giving the Applicant Jakaj no credit for his early and continuing offer to plead guilty to manslaughter. 7The Learned Sentencing Judge erred in finding beyond reasonable doubt that the Accused Zefi introduced the knife and that self-defence played no role in the actions of the Accused Zefi.8The Learned Sentencing Judge erred in finding that special reasons did not exist to fix a shorter than the prescribed non-parole period pursuant to section 32A of the Criminal Law (Sentencing) Act 1988. During the course of the appeal a further ground was added with the consent of the respondent. This became ground 10. There is considerable overlap of the legal principles between the appeals of Mr Zefi and Mr Jakaj. It is therefore convenient to deal with the common grounds first.Ground 7 We have already concluded in Mr Zefi’s appeal that it was open to the Judge to find that it was Mr Zefi who introduced the knife into the fight. For the reasons articulated in that appeal we reject this ground of appeal. Ground 6 The legal principles relating to a pre-trial offer to plead guilty to a lesser offence are set out earlier in this judgment. Mr Jakaj offered to plead guilty to manslaughter prior to the committal hearing and again prior to the commencement of the trial. It was accepted that the offer to plead guilty to manslaughter was never reduced to writing, nor was a factual basis upon which the plea would be entered resolved. However it was submitted that the offer was not a mere testing of the waters but was a genuine offer. Counsel submitted that the prosecution were sought out by Mr Jakaj’s legal representatives very early in the proceedings to discuss a plea. It was submitted that this displayed a level of commitment on his behalf to the offer to plead guilty and therefore credit should have been granted in his favour when sentencing him, particularly given that he was ultimately convicted of the very offence to which he offered to plead guilty.

Ratio Decidendi

Legal Principle Established

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