Raphel Jawahiri v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0199

RAPHEL JAWAHIRI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2021
DATE OF JUDGMENT:	29 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 75
JUDGMENT APPEALED FROM:	[2020] VCC 1351 (Judge Tinney)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of internationally causing serious injury – Joint attack – Unprovoked – No explanation for offending – Motive unclear – Use of meat cleaver as weapon – Life-threatening injuries sustained – Sentenced to 8 years and 6 months’ imprisonment with non-parole period of 5 years and 6 months – Whether sentence manifestly excessive – Early guilty plea – Young offender – Lack of prior convictions – Reasonable prospects for rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Marcevski Lawyers
For the Respondent	Ms R L Harper	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA:

1. The applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury.[1]  On 28 August 2020, the applicant was sentenced by a judge of that Court to 8 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months.  The maximum penalty for the offence is 20 years’ imprisonment.[2]  The judge declared that but for the applicant’s guilty plea he would have sentenced the applicant to 11 years’ imprisonment with a non-parole period of 8 years.

   [1]Crimes Act 1958 s 16.

   [2]Ibid.

1. The applicant seeks leave to appeal on a single proposed ground that the sentence imposed by the judge was manifestly excessive.

Summary of the offending

1. The applicant was 20 years of age at the time of the offending and his co-accused was 19.  On 25 October 2019, shortly before 11:00pm, while the victim was walking home from a friend’s house, he cut through the 7-Eleven service station on the corner of Racecourse and Boundary Roads in Flemington.

1. The applicant arrived at the service station at 10:51pm in a Subaru sedan.  He exited the passenger side of the car and purchased food at the 7-Eleven.  An unknown male exited the driver’s side of the car and also entered the store.

1. The applicant and the unknown male returned to the car, and the victim then walked through the petrol bowser area at 10:57pm.  The victim made eye contact with the applicant who was by the passenger side of the car.  The victim later stated that the applicant did not say anything to him, ‘but he was looking at me funny when I walked past’.

1. The victim continued to walk home, west along Racecourse Road.  The applicant and the unknown male got into the car, drove out of the service station and headed west along Racecourse Road.

1. At 11:00pm the applicant, co-accused and an unknown male…