Shahbazi v The King - [2023] VSCA 127

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0077

SHAHROUZ SHAHBAZI	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST AP and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	25 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 127
JUDGMENT APPEALED FROM:	DPP (Cth) v Kazemi & Shahbazi [2016] VCC 431 (Judge Lawson).

---

CRIMINAL LAW – Appeal – Sentence – Practice and procedure – Second or subsequent appeal against sentence based on fresh evidence – Whether Court of Appeal has power to entertain further application for leave to appeal against sentence after previous application has been refused on the merits – Second application for leave to appeal against sentence incompetent – Visser v The King [2023] VSCA 10 applied.

---

Counsel
Applicant:		Mr J Murphy
Respondent:		Ms K Breckweg and Mr M Wilson
Solicitors
Applicant:	Victorian Bar Duty Barristers’ Scheme
Respondent:	Commonwealth for Director of Public Prosecutions

PRIEST AP
T FORREST JA:

On 15 October 2015, the applicant and a co-offender, Hadi Kazemi, pleaded guilty before a judge in the County Court to two charges of importing a commercial quantity of a border-controlled drug, methamphetamine.[1] Several months later, on 14 April 2016, the judge sentenced the applicant to a total effective sentence of eight years and six months’ imprisonment, with a non-parole period of five years and six months; and sentenced Kazemi to a total effective sentence of seven years’ imprisonment with a non-parole period of four years.[2]
[1]Criminal Code ((Cth), ss 11.2A and 307.1(1). The maximum penalty is life imprisonment.
[2]DPP (Cth) v Kazemi & Shahbazi [2016] VCC 431.
By a notice dated 12 May 2016, the applicant sought leave to appeal against his sentence on a single ground that contended that the disparity between his and Kazemi’s sentence ‘was not reasonably open in all the circumstances’.
A judge of this Court refused leave to appeal against sentence on 27 July 2016.[3] Following that refusal, the applicant elected to have his application for leave to appeal considered by two or more judges.[4] In the result, the Court constituted by two judges once more refused the applicant leave to appeal against his sentence (‘the first application’).[5] At the time, r 2.39 of the Supreme Court (Criminal Procedure) Rules 2008 (‘the 2008 Rules’) required the Registrar to give notice of the result to various individuals.[6] It provided:
[3]Shahbazi v The Queen (Unreported, 27 July 2016, Court of Appeal, Redlich JA).
[4]See Criminal Procedure Act 2009, s 315(2); Supreme Court (Criminal Procedure) Rules 2008, r 2.08 (now revoked).
[5]Shahbazi v The Queen [2016] VSCA 270 (Kaye and McLeish JJA).
[6]Rule 2.39 of the current Rules — the Supreme Court (Criminal Procedure) Rules 2017 (‘the 2017 Rules’) — is in the same terms.
2.39 Registrar to notify determination
(1) Upon the determination of an appeal or of any matter under section 315 of the Act, the Registrar shall give notice of the result in Form…

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.

Keep reading for free

Create a free CaseChat account to read Shahbazi v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSCA 127
Decision Date: 25 May 2023

CaseChat Overview and Summary

In the matter of Shahbazi v The King, the appellant, Shahbazi, sought to appeal against his sentence on the grounds of fresh evidence. This case came before the Court of Appeal, which was required to determine whether the court had the power to entertain a second application for leave to appeal against the sentence after the previous application had already been refused on the merits. The Court of Appeal had to decide if the second application for leave to appeal against sentence was competent under the existing legal framework.

The central legal issue in this case was whether the Court of Appeal had the jurisdiction to consider a second application for leave to appeal against a sentence, subsequent to a previous application that was dismissed on its merits. The Court of Appeal examined the relevant case law and statutory provisions, particularly focusing on Visser v The King [2023] VSCA 10, which held that a second application for leave to appeal against sentence based on fresh evidence was generally incompetent. The Court of Appeal needed to assess whether the principles established in Visser applied to the present case.

The Court of Appeal concluded that the second application for leave to appeal against sentence was incompetent, adhering to the principles set out in Visser. The court held that once an application for leave to appeal against sentence has been refused on the merits, the court lacks the power to entertain a subsequent application based on the same grounds. This decision was consistent with the established jurisprudence that seeks to maintain the finality of sentencing decisions and prevent repetitive litigation. Consequently, the appeal was dismissed.

No further orders were made by the Court of Appeal beyond the dismissal of the appeal. The Court of Appeal's decision underscored the importance of adhering to legal precedents that aim to prevent the recurrence of appeals based on the same evidence and arguments, thereby upholding the integrity of the appellate process.

Orders