Legal Research
Cases
Saipani v The Queen

Saipani v The Queen

Case [2021] ACTCA 5 19 February 2021

Statutory Construction

Criminal Law

Statutory Interpretation

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Saipani v The Queen
Citation:	[2021] ACTCA 5
Hearing Date:	19 February 2021
DecisionDate:	19 February 2021
ReasonsDate:	12 March 2021
Before:	Burns, Loukas-Karlsson and Charlesworth JJ
Decision:	See [7]
Catchwords:	COURT OF APPEAL – APPEAL AGAINST CONVICTION – Multiple co-offenders – joint commission of aggravated burglary – consideration of nature of agreement – consideration of meaning of trespass – whether appellant required to be present for every physical element of joint offence – appeal refused COURT OF APPEAL – APPEAL AGAINST SENTENCE – Multiple co-offenders – whether sentence manifestly excessive – application of parity principle where appellant came to be sentenced on a more serious charge than those to which his co-offenders pleaded guilty – whether disparity engenders justifiable sense of grievance or injustice to objective bystander – consideration of parity principle and prosecutorial discretion – appeal granted
Legislation Cited:	Crimes (Amendment) Act (No 4) 1985 (ACT) Crimes Act 1900 (ACT) Crimes Act 1958 (Vic) Criminal Code 2002 (ACT) ss 45A, 311 and 312 Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004 (ACT) Supreme Court Act 1933 (ACT) s 37O
Cases Cited:	Barker v The Queen (1983) 153 CLR 338 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hiron v The Queen [2018] NSWCCA 10 Ivory v The Queen [2014] NSWCCA 181 Libke v The Queen [2007] HCA 30; 230 CLR 559 Lowe v The Queen (1984) 154 CLR 606 M v The Queen (1994) 181 CLR 487 Newington v Windeyer (1985) 3 NSWLR 555 Pell v The Queen [2020] HCA 12; 94 ALJR 394
Texts Cited:	Explanatory Statement, Crimes Amendment Ordinance (No 4) 1985 (ACT) Explanatory Statement, Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, ‘Chapter 3: Theft, Fraud, Bribery and Related Offences’ (December, 1995)
Parties:	Javarne Saipani (Appellant) The Queen (Respondent)
Representation:	Counsel J Purnell SC (Appellant) R Christensen (Respondent)
Solicitors JDR Law (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 26 of 2020
Decisions under appeal:	Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 15 July 2020 Case Title: R v Saipani Citation: [2020] ACTSC 191 Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 18 August 2020 Case Title: R v Saipani (No 2) Citation: [2020] ACTSC 228

THE COURT

The appellant, Javarne Saipani, was jointly charged with Ibrahim Kaddour and

Kyle Butkovic (the co-offenders) on an indictment dated 11 June 2019 with one count alleging that on or about 5 November 2018 they entered or remained in a building, namely a unit in Lyneham (the unit), as trespassers with intent to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building, and at the time they were…

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 Saipani v The Queen

Details

AGLC: Saipani v The Queen [2021] ACTCA 5
Case: [2021] ACTCA 5
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, Court of Appeal, heard an appeal by Javarne Saipani against his conviction and sentence for aggravated burglary. The appellant was jointly charged with two co-offenders for entering a unit as trespassers with intent to commit an offence involving harm or threats of harm, while in company and possessing an offensive weapon. The appellant and his co-offenders pleaded guilty to this charge, which was contrary to section 312 of the *Criminal Code 2002* (ACT).

The appeal against conviction raised the legal issue of whether the appellant was required to be present for every physical element of the joint offence of aggravated burglary. Specifically, the court considered the meaning of "trespasser" in the context of the offence and the application of section 45A of the Code, which deals with joint commission of offences through agreement. The appeal against sentence concerned whether the appellant's sentence was manifestly excessive, particularly in light of the parity principle, given that he was sentenced on a more serious charge than his co-offenders who pleaded guilty to lesser offences.

The Court of Appeal reasoned that for the purposes of a joint commission offence under section 45A of the Code, an appellant does not need to be present for every physical element of the offence. The court affirmed that the agreement to commit the offence, as defined by section 45A, is key, and an individual can be found guilty even if not present when the physical elements of the joint offence were engaged in, provided they intended for the offence to be committed under the agreement. The appeal against conviction was therefore refused.

However, the appeal against sentence was granted. The court found that the disparity in sentencing between the appellant and his co-offenders, who pleaded guilty to less serious charges, was unjustifiable. The court considered the parity principle and the role of prosecutorial discretion, concluding that the difference in charges and resulting sentences created a justifiable sense of grievance or injustice from an objective bystander's perspective. The court ordered that the appeal against sentence be granted.

Orders