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Shavali v R

Shavali v R

Case [2022] NSWCCA 178 26 August 2022

Sentencing

Appeal

Intensive Correction Order

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shavali v R [2022] NSWCCA 178
Hearing dates: 24 June 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Before: Brereton JA at [1]
Wilson J at [15]
Cavanagh J at [81]
Decision:
(1) Grant leave to the applicant to appeal,
(2) Dismiss the appeal.

Catchwords:
CRIME – sentence – appeal against sentence – failure to take pre-sentence custody into account in imposing sentence – intensive correction order imposed – error conceded by Crown – court required to re-sentence – question of utility of application – “Parker warning” – requirement to commence any intensive correction order from the date of imposition – impossibility of backdating sentence – question of burden of any further, shorter, intensive correction order on the applicant’s liberty – whether such sentence would constitute a harsher penalty in the circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Criminal Appeal Act 1912 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
Blanch v R [2019] NSWCCA 304
Casella v R [2019] NSWCCA 201
Deron v R [2006] NSWCCA 73
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
JJ v R [2020] NSWCCA 165
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mandranis v R (2021) 298 A Crim R 260; [2021] NSWCCA 97
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122

Category: Principal judgment
Parties: Ali Shavali (Applicant)
Regina (Respondent)
Representation:
Counsel:
G James AM QC (Applicant)
E Wilkins SC (Crown) (NSW) (Respondent)
Solicitors:
Oxford Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/3852
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 November 2020

Before:

Craigie SC ADCJ

File Number(s):

2018/00003852

Judgment

BRERETON JA: The background to this application by Ali Shavali for leave to appeal from an aggregate sentence of 3 years imprisonment to be served by way of an Intensive Correction Order (“ICO”), which was imposed on him on 25 November 2020 and expires on 24 November 2023, is set out in the judgment of Wilson J, which I have had the benefit of reading in draft.
I agree with her Honour’s reasons for concluding that Ground 1 (which complains that it is not apparent that the Court took into account the offender’s pre-sentence custody when imposing the aggregate sentence of 3 years imprisonment) must succeed. While one might doubt that that the learned and experienced sentencing judge did not take into account the pre-sentence custody, of which he was plainly conscious and to which he referred, in precise detail, albeit in the context of considering the applicant’s subjective case and antecedents, how it was taken into account does not appear, and the requirement “that it be demonstrated that it has been taken into account” was not satisfied.

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 Shavali v R

Details

AGLC: Shavali v R [2022] NSWCCA 178
Case: [2022] NSWCCA 178
Decision Date: 26 August 2022

CaseChat Overview and Summary

The appeal was brought by the respondent, the Crown, against the sentence imposed on the appellant, Shavali, by the County Court. The appellant had been found guilty of various offences, including possessing a knife in a public place, resisting arrest, and assaulting a police officer. The Crown appealed the sentence, arguing that the County Court had not adequately taken into account the appellant’s pre-sentence custody in imposing sentence. The appellant cross-appealed, arguing that the sentence was otherwise manifestly inadequate. The court was required to determine whether the Crown’s appeal was well-founded and, if so, whether the appellant’s cross-appeal should be upheld.

The court found that the Crown’s appeal was valid, as the County Court had failed to take the appellant’s pre-sentence custody into account in imposing sentence. The court considered whether it should apply the “Parker warning” to the appellant, which would have required the court to re-sentence the appellant, commencing any intensive correction order from the date of imposition of the sentence. However, the court found that it was impossible to backdate the sentence in this case, as the appellant had already served a significant period of pre-sentence custody. The court then considered whether the appellant would suffer a harsher penalty if a shorter, further intensive correction order was imposed. The court found that the appellant would not suffer a harsher penalty in these circumstances, as the appellant would be released from custody and the burden of the intensive correction order would be less onerous than the period of imprisonment already served.

The court ordered that the appeal be allowed, and that the sentence imposed by the County Court be set aside. The court remitted the matter to the County Court for re-sentencing, with directions to take into account the appellant’s pre-sentence custody in imposing sentence. The court further directed that the County Court should not impose an intensive correction order, as it would be inappropriate to do so in these circumstances. The court noted that the appellant would be released from custody, and that any further penalty imposed would be less onerous than the period of imprisonment already served. The court did not order costs in relation to the appeal or cross-appeal.

Orders