Raphel Jawahiri v The Queen

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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…

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Details
Case
[2021] VSCA 75
Decision Date

CaseChat Overview and Summary

Raphel Jawahiri appealed against his sentence, seeking leave to appeal on the grounds that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia. Jawahiri was convicted for his involvement in a joint attack that resulted in another person sustaining serious, life-threatening injuries. The attack was unprovoked, and the motive remained unclear. Jawahiri used a meat cleaver as a weapon during the incident. The primary legal issue for the court was whether the sentence of eight years and six months imprisonment, with a non-parole period of five years and six months, was manifestly excessive.

The court examined the circumstances surrounding the offence, including the unprovoked nature of the attack, the use of a dangerous weapon, and the severity of the injuries inflicted. The court also took into account the defendant's age at the time of the offence, his lack of prior convictions, and his early guilty plea. These factors suggested a possibility of rehabilitation. The court considered whether the sentence was disproportionate to the gravity of the offence and whether it failed to adequately reflect the principles of proportionality and rehabilitation. Ultimately, the court determined that the sentence was not manifestly excessive and denied leave to appeal.

The High Court upheld the original sentence, finding that it was not manifestly excessive given the circumstances of the offence and the mitigating factors presented. The court acknowledged the seriousness of the crime but also recognised the potential for rehabilitation. Consequently, the appeal was dismissed, and the original sentence remained in place.

Orders

Orders of the court

See [52]

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Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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