Shiryar v The Queen - [2022] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0155

NAZIR SHIRYAR	Applicant
v
THE QUEEN	Respondent

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JUDGE:	McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 96
JUDGMENT APPEALED FROM:	DPP v Shiryar (Unreported, County Court of Victoria, Judge Gamble, 3 September 2021)

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CRIMINAL LAW – Leave to appeal – Sentence – Manifest excess – Family violence – Attempting to pervert course of justice – Persistent contravention of family violence intervention order – Total effective sentence 2 years and 9 months – Non-parole period 2 years – Whether sentences manifestly excessive – Sentences within range – Leave to appeal refused.

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Written submissions:	Counsel	Solicitors
For the Applicant	Mr C Terry	James Dowsley & Associates
For the Respondent	Mr B Sonnet	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA:

On 17 August 2021, the applicant pleaded guilty before a judge of the County Court to one charge of attempting to pervert the course of justice[1] and one charge of persistently contravening a family violence intervention order.[2]
[1]Contrary to the common law.
[2]Family Violence Protection Act 2008 s 125A.

On 3 September 2021, the judge sentenced him as follows:

Charge on indictment L12202794	Offence	Maximum	Sentence	Cumulation
1	Attempting to pervert the course of justice	25 years’ imprisonment	2 years and 6 months’ imprisonment	Base
2	Persistently contravening a family violence intervention order	5 years’ imprisonment	9 months’ imprisonment	3 months
Total effective sentence		2 years and 9 months’ imprisonment
Non-parole period		2 years
Pre-sentence detention declaration		325 days
6AAA statement		4 years’ imprisonment with a non-parole period of 3 years

The applicant now applies for leave to appeal on the ground of manifest excess.[3]
[3]An application for an extension of time was granted administratively.

For the reasons that follow, leave to appeal will be refused.

Circumstances of offending

At the time of the offending, the applicant was 29 years old and on remand, facing a series of separate charges to which he ultimately pleaded guilty: two charges of criminal damage, one charge of stalking, one charge of making a threat to kill, and two charges of committing an indictable offence while on bail.

Two of those charges are particularly relevant: the charge of stalking (the victim of which was the applicant’s former partner, ES) and the charge of making a threat to kill (the object of which was ES’s father). It is convenient to refer to the offences the subject of these charges as the ‘initial offending’.

Just prior to the present offending, the applicant’s months-long relationship with ES had come to an end. Shortly after that happened, the initial offending occurred, over a span of four days. On 18 October 2019, an interim family violence intervention order was made and served on the applicant. The order relevantly prohibited the applicant from contacting ES or having someone else contact her on his behalf. In the meantime, the applicant was charged with…

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 Shiryar v The Queen

Details

AGLC: Shiryar v The Queen [2022] VSCA 96
Case: [2022] VSCA 96
Decision Date: 25 May 2022

CaseChat Overview and Summary

In the matter of Shiryar versus The Queen, the respondent sought leave to appeal against her sentence for multiple offences, including attempting to pervert the course of justice and persistent contravention of a family violence intervention order. The applicant, Shiryar, was sentenced in the Supreme Court of Queensland to a total effective sentence of two years and nine months, with a non-parole period of two years. The central issue before the court was whether the sentences imposed were manifestly excessive. The court was required to consider whether the sentences were within the appropriate range for the crimes committed, taking into account the totality of the offending and the impact of family violence.

The court examined the nature and circumstances of the offences, as well as the relevant sentencing principles and guidelines. It noted that the applicant had a history of family violence and had persistently contravened a family violence intervention order. The court also considered the seriousness of the offences and the need for general deterrence. After weighing these factors, the court concluded that the sentences imposed were not manifestly excessive and were within the appropriate range for the crimes committed. The court also noted that the sentences took into account the impact of family violence on the victim and the need for rehabilitation.

The court refused the respondent's application for leave to appeal, holding that the sentences were not manifestly excessive and were within the appropriate range. The court emphasised the importance of considering the totality of the offending and the impact of family violence when determining an appropriate sentence. The court also noted that the sentences imposed reflected the seriousness of the offences and the need for general deterrence. The court did not make any further orders.

Orders