Shivraj Gandhok v The Queen - [2018] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0270

SHIVRAJ GANDHOK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2018
DATE OF JUDGMENT:	20 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 29
JUDGMENT APPEALED FROM:	DPP v Gandhok (Unreported, County Court of Victoria, Judge Cotterell, 1 December 2017)

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CRIMINAL LAW — Sentence — Appeal — Attempting to pervert the course of justice and attempting to obtain financial advantage by deception — Sentenced to 7 months’ imprisonment with CCO of 30 months’ duration — Whether disparity with sentence imposed on co-offender — Whether plea of guilty given too little weight — Whether sentence manifestly excessive —Sentence Manifestly Excessive— Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Georgiou SC with Mr P Smallwood	Vernon Da Gama & Associates
For the Crown	Mr B Sonnett	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

The applicant is aged 22 years.[1]
[1]His date of birth is 3 December 1995.

On 10 November 2017 he pleaded guilty in the County Court to one charge of attempting to pervert the course of justice[2] and one charge of attempting to obtain a financial advantage by deception.[3] Following a plea on, 1 December 2017 the judge sentenced him to be imprisoned for seven months, to be followed by a community correction order (‘CCO’) of 30 months’ duration, with a condition that he perform 200 hours community work. The sentence is reflected in the following table:
[2]Attempting to pervert the course of justice is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, ss 82 and 321M. The maximum penalty is 25 years’ imprisonment.

Charge Offence Sentence Cumulation

1 Attempt to pervert the course of justice 6 months Base

2 Attempt to obtain financial advantage 3 months 1 month

Total Effective Sentence: 7 months’ imprisonment with 30 month CCO

Non-Parole Period: Nil

Pre-sentence Detention: Nil

6AAA Statement: Imprisonment for 3 years with 1 year 9 month non-parole

A co-offender and friend of the applicant, George Taleck, aged 26,[4] pleaded guilty to one charge of attempting to pervert the course of justice and was fined $4,000.
[4]His date of birth is 5 May 1991.

The applicant seeks leave to appeal against sentence, relying on three grounds which assert that the sentence is manifestly excessive; that there is disparity between his and Taleck’s sentences; and that the judge wrongly reduced the weight given to his plea of guilty. As formulated, the grounds are as follows:

1. The sentences imposed by the sentencing judge were manifestly excessive.
Particulars:
(a)The sentences imposed on both charges 1 and 2 were manifestly too long.
(b)The wrong type of sentence was imposed; a community correction order alone ought to have been imposed.
(c)Her Honour gave manifestly insufficient weight to the applicant’s youth, his immaturity, his early…

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 Shivraj Gandhok v The Queen

Details

AGLC: Shivraj Gandhok v The Queen [2018] VSCA 29
Case: [2018] VSCA 29
Decision Date: 20 February 2018

CaseChat Overview and Summary

In the matter of Shivraj Gandhok v The Queen, the appellant contested the severity of his sentence following his conviction for attempting to pervert the course of justice and attempting to obtain financial advantage by deception. The case was heard in the Court of Appeal. The appellant argued that the disparity between his sentence and that of his co-offender was significant, that his plea of guilty was inadequately considered, and that the sentence imposed was manifestly excessive.

The primary legal issues before the court were whether the disparity between the appellant's sentence and that of his co-offender was unjust, whether the court had appropriately accounted for the appellant's plea of guilty, and whether the overall sentence was manifestly excessive. The court was required to balance these considerations against the seriousness of the offences and the need for deterrence and denunciation.

The court found that the disparity in sentencing between the appellant and his co-offender was significant and warranted attention. It was noted that the appellant had pleaded guilty, a factor that generally warrants a reduction in sentence. However, the court acknowledged the seriousness of the offences, which involved attempts to pervert the course of justice and obtain financial advantage through deception. Ultimately, the court concluded that the sentence was manifestly excessive, taking into account the totality of the circumstances, including the disparity in sentencing and the mitigating effect of the appellant's plea of guilty. The appeal was therefore allowed, and the sentence was set aside.

The final orders of the court were to allow the appeal, set aside the original sentence, and remit the matter to the sentencing court for reconsideration of the appropriate sentence. The court emphasized the importance of proportionality in sentencing and the need to appropriately consider all relevant factors, including the plea of guilty and any disparities in sentencing between co-offenders.

Orders