Legal Research
Cases
Shaptafaj v The King

Shaptafaj v The King

Case [2023] VSCA 91 27 April 2023

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0068

OSMAN SHAPTAFAJ	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, KAYE and HARGRAVE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2023
DATE OF JUDGMENT:	27 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 91
JUDGMENT APPEALED FROM:	[2022] VSC 71 (Justice Tinney)

---

CRIMNAL LAW – Appeal – Sentence – Murder – Two charges – Sentences of life imprisonment on each charge – Non-parole period of 35 years – Whether sentence manifestly excessive – Pre-planned and premeditated murder by applicant of daughter and her husband – Applicant waited outside victims’ home – Shot victims in the head at close range – Murders motivated by feelings of being insulted and offended by victims – Extremely serious offending with high degree of moral culpability – Importance of general deterrence and denunciation of offending – Application for extension of time allowed – Application for leave to appeal against sentence refused.

R v Verdins & Ors (2007) 16 VR 269; Phillips v The Queen (2021) 96 MVR 344; Worboyes v The Queen (2021) 96 MVR 344; Clarkson v The Queen (2011) 32 VR 361; DPP v MacArthur [2019] VSCA 71; R v Quarry (2005) 11 VR 337; Hunter v The Queen (2013) 40 VR 660; Cardamone v The Queen [2019] VSCA 190; Todd v The Queen [2020] VSCA 46; Noori v The Queen [2021] VSCA 46; R v DJH [1998] VSCA 108.

---

Counsel
Applicant:		Mr R Nathwani
Respondent:		Ms D I Piekusis KC
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

THE COURT:

The applicant pleaded guilty to the murder of his 25-year-old daughter Lindita Musai (‘Lindita’) and her husband Veton Musai (‘Veton’). On 22 February 2022, he was sentenced to life imprisonment on each charge. The judge fixed a non-parole period of 35 years.
The applicant, applies for leave to appeal. The application was originally made on three grounds, namely:
(1)The Learned Judge erred in imposing life sentences on the Applicant, in particular falling into error in having before him previous sentences imposed prior to the Standard Sentence scheme.
(2)The learned judge failed to provide an augmented discount for the Applicant’s guilty plea.
(3)In all the circumstances, the sentence imposed was manifestly excessive.
On the hearing of the application, counsel for the applicant, correctly, abandoned reliance on ground 1. In addition, counsel accepted that ground 2 is, in reality, a particular of ground 3. Accordingly, the sole ground on which the applicant seeks leave to appeal is that the sentences imposed on the applicant were manifestly excessive.
The application for leave to appeal was not filed until 31 May 2022, almost twelve weeks after the expiration of the period fixed by the Rules for the filing of such an application. Accordingly, the applicant also makes an application for an extension of time within which to file the notice of application for leave to appeal.
Having considered the…

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 Shaptafaj v The King

Details

AGLC: Shaptafaj v Director of Public Prosecutions [2023] VSCA 91
Case: [2023] VSCA 91
Decision Date: 27 April 2023

CaseChat Overview and Summary

The applicant, Shaptafaj, was convicted of two counts of murder and was sentenced to life imprisonment on each count, with a non-parole period of 35 years. Shaptafaj appealed against the severity of the sentence, arguing that it was manifestly excessive. The case was heard in the Supreme Court of Victoria. The central issue for the court was whether the sentence imposed was manifestly excessive in light of the nature and circumstances of the offending and the principles of sentencing.

The court considered the gravity of the crimes, which involved the pre-planned and premeditated murder of the applicant’s daughter and her husband. The murders were particularly brutal, with the applicant waiting outside the victims' home before shooting them in the head at close range. The motive behind the murders was rooted in feelings of insult and offense felt by the applicant towards the victims. The court noted the extremely serious nature of the offending and the high degree of moral culpability associated with it. Additionally, the importance of general deterrence and denunciation of such heinous crimes was highlighted.

After considering the relevant legal principles and precedents, the court found that the sentence was not manifestly excessive. The court recognised the need to balance the seriousness of the crimes with the principles of sentencing, including the need for appropriate punishment and deterrence. The application for leave to appeal against the sentence was therefore refused. The court also granted the applicant’s application for an extension of time, allowing the appeal to be heard within the stipulated period.

Orders