R v Ziday - [2006] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 381 of 2005

THE QUEEN
	v.
SLAVICA ZIDAY

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JUDGES:	CALLAWAY and REDLICH, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 August 2006
DATE OF JUDGMENT:	9 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 163

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Criminal law – Sentencing – Home invasion – Appellant pleading guilty to recklessly causing serious injury, but co-offender pleading guilty to intentionally causing serious injury – Identical sentences imposed – No infringement of parity principle – Further sentences imposed for aggravated burglary and offences committed inside premises involved double punishment – Whether sentence of three-and-a-half years’ imprisonment with non-parole period of 14 months manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S.M. Cooper	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Ms F.L. Dalziel	Victoria Legal Aid

CALLAWAY, J.A.:

The appellant is now aged 49. She will turn 50 in a few days' time.[1] She pleaded guilty in the County Court to one count of aggravated burglary (count 1), one count of recklessly causing serious injury (count 2), one count of recklessly causing injury (count 3), one count of common assault (count 4) and one count of making a false report to the police (count 5). The first four counts related to a home invasion on 9th December 2003. The false report was made on 31st December 2003. The appellant's daughter also pleaded guilty to five counts relating to the home invasion and the false report. The difference was that, in her case, count 2 alleged intentionally causing serious injury. In addition, the appellant's daughter returned to the site of the home invasion on 12th March 2004, in relation to which she pleaded guilty to a further count of attempted aggravated burglary (count 6).
[1]The reference to her being aged 59 at [16] of the sentencing remarks may be a typographical error. It was not submitted that anything turned on it.

The appellant admitted one previous finding of guilt. On 22nd January 2003 she appeared in the Magistrates' Court on a charge of unlawful assault and was released on an undertaking to be of good behaviour. No previous convictions or findings of guilt were alleged against her daughter.

After hearing pleas for leniency on their behalf, the learned judge sentenced the appellant and her daughter on 15th December 2005. His Honour sentenced the appellant to two-and-a-half years' imprisonment on count 1, 18 months' imprisonment on count 2, six months' imprisonment on count 3, one month's imprisonment on count 4 and two months' imprisonment on count 5. A direction that 12 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1 resulted in a total effective sentence of three-and-a-half years' imprisonment. A non-parole period of 14 months was fixed. His Honour sentenced the appellant's daughter to the same terms of imprisonment on counts 1 to 5, with the same direction for cumulation and the same non-parole period. A sentence…

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 Ziday

Details

AGLC: R v Ziday [2006] VSCA 163
Case: [2006] VSCA 163
Decision Date: 9 August 2006

CaseChat Overview and Summary

In the case of R v Ziday, the appellant was convicted for his role in a home invasion where he pleaded guilty to recklessly causing serious injury. His co-offender, however, pleaded guilty to intentionally causing serious injury. The appellant was sentenced to a total of three-and-a-half years’ imprisonment with a non-parole period of 14 months. This sentence included terms for the recklessly causing serious injury offence, an aggravated burglary, and offences committed inside the premises. The appellant appealed the sentence, arguing that it was manifestly excessive and violated the principle of parity. He further argued that the cumulative sentences for the aggravated burglary and the offences committed inside the premises constituted double punishment.

The legal issues before the court were whether the sentence imposed was manifestly excessive and if it infringed on the principle of parity, which requires that co-offenders with similar culpability receive comparable sentences. The court also had to consider if the sentences for the aggravated burglary and the offences committed inside the premises constituted double punishment.

The court found that the sentences imposed were not manifestly excessive and did not violate the principle of parity. The court emphasised that the appellant’s role in the offence was distinct from that of his co-offender, justifying the imposition of different sentences. The court also held that the sentences for the aggravated burglary and the offences committed inside the premises did not constitute double punishment, as they related to separate and distinct criminal acts. The appeal was dismissed, and the sentence upheld.

Orders