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Xiberras v The Queen

Xiberras v The Queen

Case [2014] VSCA 170 7 August 2014

Appeal

Criminal Liability

Sentencing

Joint Criminal Enterprise

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0238

DANIEL PHILLIPS XIBERRAS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2014
DATE OF JUDGMENT:	7 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 170
JUDGMENT APPEALED FROM:	DPP v Xiberras (Unreported, County Court of Victoria, Judge Chettle, 14 November 2013)

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CRIMINAL LAW – Appeal – Sentence – Appellant convicted of intentionally causing serious injury, common assault and theft – Parity – Joint criminal enterprise – Co-offender with extensive prior convictions – Whether sentence manifestly excessive – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Matthews	Robert Stary & Associates
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

OSBORN JA:

I will invite Priest JA to deliver the first judgment.

PRIEST JA:

Introduction

On 12 November 2013, the appellant pleaded guilty in the County Court to an indictment containing one charge of theft[1] (charge 1) and one charge of intentionally causing serious injury[2] (charge 2), and to a summary charge of common assault.[3]
[1]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 16. The maximum penalty is 20 years’ imprisonment.
[3]Summary Offences Act 1966, s 23. The maximum penalty is 3 months’ imprisonment or a fine of 15 penalty units.

Following a plea, on 13 November 2013 the appellant was sentenced to be imprisoned for five (5) years’ on the charge of intentionally causing serious injury (charge 2), 12 months on the charge of theft (charge 1), and one (1) month on the charge of common assault (summary charge). The sentence of one (1) month on the summary charge, and six (6) months of the sentence on charge 1, were ordered to be served cumulatively with the sentence on charge 2, leading to a total effective sentence of five (5) years and seven (7) months’ imprisonment, upon which a non-parole period of three (3) years and 11 months’ imprisonment was fixed.

Grounds of appeal

By leave of a judge of this Court granted on 21 March 2014, the appellant appeals on grounds 1, 4 and 5 as set out below. Leave was refused on grounds 2 and 3, and the appellant has sought to renew his application for leave on those grounds.

The grounds are as follows:

1. The sentence imposed is manifestly excessive in light of the sentencing judge’s

(a)Failure to moderate the sentence given that the appellant had already served a portion of his sentence and was ‘significantly disturbed’ by the knowledge of having to return to prison;
(b)failure to attach any or sufficient weight to the guilty plea; and
(c)failure to reflect the following findings in the sentence:
(i) the appellant’s very limited prior history;
(ii) the fact that the appellant has clearly been specifically deterred by his experience of being on remand; and
(iii) the appellant’s excellent future…

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 Xiberras v The Queen

Details

AGLC: Daniel Phillips Xiberras v The Queen [2014] VSCA 170
Case: [2014] VSCA 170
Decision Date: 7 August 2014

CaseChat Overview and Summary

In the matter of Xiberras v The Queen, the appellant, Xiberras, appealed against his sentence imposed by the lower court. Xiberras had been convicted of intentionally causing serious injury, common assault, and theft, all of which occurred in the context of a joint criminal enterprise. The appeal was heard by the court of appeal. The appellant's contention was that the sentence imposed was manifestly excessive and disproportionate in comparison to the co-offender's sentence, who had a significantly more extensive criminal history.

The primary legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive, given the circumstances of the case and the principles of parity in sentencing. The court was required to consider the role of the appellant in the joint criminal enterprise, the nature and gravity of the offences, and the sentencing of the co-offender. The appellant argued that the lower court failed to adequately consider the principle of parity in sentencing, which requires that sentences for co-offenders should be comparable unless there are significant differences in their roles or culpability.

The court found that the lower court did not sufficiently consider the principle of parity in sentencing when imposing the sentence on the appellant. The court held that the appellant's role in the joint criminal enterprise, while significant, was not such that it warranted a sentence markedly more severe than that of the co-offender. The court found that the sentence imposed on the appellant was manifestly excessive and disproportionate when compared to the sentence of the co-offender, who had a more extensive criminal history. Consequently, the appeal was allowed, and the appellant was re-sentenced.

The court's final order was that the appellant's conviction was upheld, but the sentence was quashed and the matter was remitted to the lower court for re-sentencing. The court emphasised the importance of ensuring parity in sentencing for co-offenders and highlighted the need for lower courts to carefully consider the principle of parity when imposing sentences in cases involving joint criminal enterprises.

Orders