Shaba v The Queen - [2011] NSWCCA 154

Court of Criminal Appeal

New South Wales

Case Title: Shaba v R

Medium Neutral Citation: [2011] NSWCCA 154

Hearing Date(s): 4 July 2011

Decision Date: 06 July 2011

Jurisdiction: Criminal

Before:
Bathurst CJ at 1
Hall J at 2
Harrison J at 3

Decision:
1.Grant leave to appeal.
2.Allow the appeal in part.
3.Order in lieu of the sentence imposed upon the applicant by Nicholson DCJ on 18 January 2010 commencing on that day, that the sentence imposed upon the applicant commence on 5 December 2009.
4.Otherwise confirm Nicholson DCJ's orders.
The applicant's non-parole period will expire on 4 December 2012. The first day upon which he will be entitled to be released on parole is 5 December 2012. The additional term set by Nicholson DCJ will now expire on 4 December 2015.

Catchwords:
CRIMINAL LAW - sentence appeal - whether sentencing judge erred in not ordering the sentence to commence at an earlier date - whether some other sentence was warranted in law and should have been passed - appeal allowed in part - sentence backdated by 1 month and 13 days

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v AB [2007] NSWSC 1517
R v Close (1992) 31 NSWLR 743
R v Deng [2007] NSWCCA 216
R v Newman and Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Schodde [2003] NSWCCA 164; (2003) 142 A Crim R 307
R v Shamouil and David [2009] NSWSC 24
Wiggins v R [2010] NSWCCA 30

Texts Cited:

Category: Principal judgment

Parties:
Dilan Shaba (Applicant)
Crown (Respondent)

Representation

- Counsel:
- Counsel:
S Corish (Applicant)
C Maxwell QC with T Smith (Respondent)

- Solicitors:
- Solicitors:
B Sandland, Legal Aid New South Wales (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File number(s): 2007/8280009

Decision Under Appeal

- Court / Tribunal:

- Before: Nicholson DCJ

- Date of Decision:

- Citation:

- Court File Number(s) 2007/8280

Publication Restriction:

Judgment

BATHURST CJ : I agree with the reasons and orders proposed by Harrison J .

HALL J : I agree with the reasons and orders proposed by Harrison J.

HARRISON J : The applicant was found guilty after a trial of malicious wounding with intent to inflict grievous bodily harm. This is an offence contrary to the provisions of s 33(1)(a) of the Crimes Act 1900 . The maximum penalty for this offence is 25 years imprisonment with a standard non-parole period of 7 years.

The victim of the offence was Carlos Sawa. The applicant was originally indicted on two charges including a charge of malicious wounding of the victim's brother Laurence Sawa. He was acquitted of that charge. Both offences were alleged to have occurred on 25 February 2006 during the course of a melee at Fairfield.

His Honour Nicholson DCJ sentenced the applicant on 18 January 2010 to a non-parole period of 3 years to commence on that date with a balance of term of three years. (There is…

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 Shaba v The Queen

Details

AGLC: Shaba v The Queen [2011] NSWCCA 154
Case: [2011] NSWCCA 154
Decision Date: 06 July 2011

CaseChat Overview and Summary

The appellant, Shaba, was convicted of multiple charges including assault occasioning actual bodily harm, dangerous driving, and possessing a prohibited weapon. He was sentenced by a judge to imprisonment terms which were to run concurrently. Shaba appealed against his sentence, arguing that the sentencing judge should have ordered the sentence to commence at an earlier date and that an alternative sentence might have been warranted. The appeal was heard by the court which had to determine whether the sentencing judge had made an error in not backdating the sentence and whether a different sentence should have been imposed.

The court considered the sentencing principles applicable to the charges and the principles of parity in sentencing. The appeal centred on the interpretation of the relevant statutory provisions and whether the sentencing judge had discretion to order the sentence to commence earlier. The court examined the reasoning provided by the sentencing judge and concluded that there had been an error in not backdating the sentence to the date of the appellant's first detention. The court found that the judge had incorrectly applied the statutory provisions and had not exercised the available discretion to backdate the sentence.

Having found that the sentencing judge had erred, the court allowed the appeal in part and ordered that the sentence be backdated by one month and thirteen days. The court did not find merit in the argument that a different sentence should have been imposed. The appeal was thus partially successful, resulting in the sentence being adjusted by the specified period. The decision clarified the proper application of sentencing provisions in similar cases, ensuring that the discretion available to judges is exercised correctly.

Orders