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Shbaro v The Queen

Shbaro v The Queen

Case [2022] VSCA 190 5 September 2022

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0090

AMANI SHBARO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2022
DATE OF JUDGMENT:	5 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 190
JUDGMENT APPEALED FROM:	DPP v Abela & Ors [2022] VCC 941 (Judge Hawkins)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing injury – Sentence of nine months’ imprisonment with community correction order of 18 months’ duration – Co-offender with prior criminal history sentenced to 14 months’ imprisonment with eight month non-parole period – Whether parity principle infringed – Leave to appeal refused.

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Counsel
Applicant:		Mr M Murphy
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Haines & Polites
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WALKER JA:

Introduction

Over several hours on 19 March 2021, Timothy Yong was assaulted by several individuals – including the applicant, her partner, Robert Eman (‘Eman’), and Piriho Abela (‘Abela’) – at an address in Noble Park. During the assault, Mr Yong was kicked, punched and slapped to the face and body multiple times. At one stage, the applicant held a machete to Mr Yong’s leg, albeit he was not cut.
A medical examination of Mr Yong conducted the next day revealed extensive injuries, including fractured nasal bones; two fractured ribs; two black eyes; a swollen left jaw; a right-side wrist drop; and a grossly swollen right ear. He was also found to have multiple bruises over his limbs, torso and back, and grazes to his right hand, face and head.
The applicant exercised her right to silence when interviewed following her arrest by police on 8 April 2021. She was subsequently charged.
On 31 March 2022, the applicant, now aged 37 years,[1] pleaded guilty before a judge of the County Court to one charge of intentionally causing injury[2] to Mr Yong a little over a year earlier. Eman, aged 41 years,[3] pleaded guilty to the same charge.
[1]Her date of birth is 17 March 1985.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]His date of birth is 11 July 1981.
Following a plea in mitigation, on 17 June 2022 the judge sentenced the applicant to nine months’ imprisonment, to be followed by a conditioned community correction order (‘CCO’)[4] of 18 months’ duration.[5] The judge sentenced Eman to 14 months’ imprisonment, with a non-parole period of eight months.[6]
[4]Conditions attached to the CCO required the applicant to: be under the supervision of a community corrections officer, and to be supervised, monitored and managed as directed; undergo assessment and treatment, including testing for drug abuse or any dependency; undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in hospital or a residential facility; and undergo any program that addresses factors relating to the offending behaviour as directed by the Regional Manager.
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared…

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 Shbaro v The Queen

Details

AGLC: Shbaro v The Queen [2022] VSCA 190
Case: [2022] VSCA 190
Decision Date: 5 September 2022

CaseChat Overview and Summary

Shbaro, the appellant, sought to appeal against a sentence imposed for intentionally causing injury. The Crown, represented by The Queen, opposed the appeal. The matter was heard by the High Court of Australia. The appellant argued that the principle of parity was violated by the sentence imposed, which was nine months’ imprisonment with a community correction order of 18 months, compared to the co-offender’s sentence of 14 months’ imprisonment with an eight-month non-parole period. The Crown contended that the principle of parity did not apply in this instance, as the sentencing judge had considered all relevant factors in determining the appropriate sentences for both offenders.

The court examined the principle of parity and its application in sentencing, considering the nature and circumstances of the offence, the culpability of the offender, and the need for deterrence and rehabilitation. The court noted that the sentencing judge had carefully considered these factors and had provided detailed reasons for the disparity in the sentences. The High Court held that the principle of parity did not apply in this case, as the sentencing judge had exercised their discretion in a manner consistent with the purposes of sentencing. The court further found that the appellant’s sentence was not manifestly excessive or inappropriate, and therefore dismissed the appeal.

The High Court emphasised the importance of judicial discretion in sentencing and the need for courts to consider the individual circumstances of each case. The court also noted that the principle of parity was not an absolute rule and could be overridden by other sentencing considerations. The High Court concluded that the appellant’s appeal against sentence should be dismissed, and no orders were made in relation to the appeal.

Orders