Zammit v The Queen - [2012] VSCA 216

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0104

SHANE ZAMMIT	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 August 2012
DATE OF JUDGMENT	12 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 216
JUDGMENT APPEALED FROM	DPP v Zammit (Unreported, County Court of Victoria, Judge Taft, 13 April 2012)

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CRIMINAL LAW — Application for leave to appeal against sentence — Plea of guilty to 13 charges including aggravated burglary, recklessly causing serious injury and multiple counts of theft — Applicant attacked occupier of house with shifting spanner and stole various items — Sentenced to seven years and six months’ imprisonment with non-parole period of five years — Offending linked to drug use — Whether reasonably arguable that sentence manifestly excessive — Particularly serious offending — Significant prior criminal history—Application refused — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Dickenson	Melasecca, Kelly & Zayler
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
WEINBERG JA:

The applicant, Shane Edward Zammit, pleaded guilty in the County Court at Melbourne to some 13 charges, most of which involved dishonesty, but two of which were offences of violence. On 13 April 2012, he was sentenced as follows:

Charge Offence Sentence Cumulation

Indictment

B12930043
1 Theft of Petrol 7 days Nil

2 Theft 7 days Nil

3 Obtaining Financial Advantage by Deception 7 days Nil

4 Theft 7 days Nil

5 Theft 7 days Nil

6 Theft 3 months 1 month

7 Aggravated Burglary 5 ½ years Base

8 Recklessly Cause Serious Injury
4 years and

9 months
12 months

9 Theft 7 days Nil

10 Theft 3 months 1 month

11
Reckless Conduct Endangering

Serious Injury
18 months 9 months

12 Theft 3 months 1 month

13 Possession of Methylamphetamine 7 days Nil

Total effective sentence 7 ½ years’ imprisonment

Non-parole period 5 years

Pre-sentence detention 175 days

Section 6AAA

declaration
9 years and 3 months’ imprisonment with a non-parole period of 6 years and 9 months

The maximum penalty for theft (charges 1-2, 4-6, 9, 10 and 12) was ten years’ imprisonment. The maximum penalty for aggravated burglary (charge 7) was 25 years’ imprisonment, and for recklessly causing serious injury (charge 8), 15 years’ imprisonment. The maximum penalty for reckless conduct endangering serious injury (charge 11) was five years’ imprisonment. Finally, the maximum penalty for possession of methylamphetamine (charge 13) was 12 months’ imprisonment.

Circumstances of the offending

The most serious offences were, of course, those that gave rise to charges 7 and 8.

On 23 September 2011, the applicant and his girlfriend, Shantelle Shepherd, went to a house in Cranbourne Road, Langwarrin. They knocked on the door, and gained entry to the premises. The applicant then removed a large shifting spanner from his backpack. He advanced towards the occupier, Cem Pecen, whilst wielding that tool above his head. He chased Pecen around a…

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 Zammit v The Queen

Details

AGLC: Zammit v The Queen [2012] VSCA 216
Case: [2012] VSCA 216
Decision Date: 12 September 2012

CaseChat Overview and Summary

In Zammit v The Queen, the applicant, Mr Zammit, appealed against the sentence imposed by the trial judge following his guilty plea to 13 charges, including aggravated burglary, recklessly causing serious injury, and multiple counts of theft. The events leading to the charges involved Mr Zammit attacking the occupier of a house with a shifting spanner and stealing various items. The case was heard in the High Court of Australia.

The primary legal issue before the court was whether the applicant had established a reasonably arguable basis for an appeal against the sentence. Specifically, the court needed to determine if the sentence was manifestly excessive. The defence argued that the sentence was too harsh given the circumstances, while the prosecution maintained that the sentence was appropriate for the severity of the offending and the applicant's criminal history.

The court considered the nature and circumstances of the offending, the applicant's prior criminal history, and the principles of sentencing. The court found that the offending was particularly serious, involving violence and theft, and that the applicant had a significant criminal history. The court held that there was no reasonably arguable basis for an appeal against the sentence, as it was not manifestly excessive. The application for leave to appeal was therefore refused.

The court's decision concluded that there was no point of principle of general legal significance that warranted the grant of special leave to appeal. The sentence imposed by the trial judge was upheld, and the applicant's application for leave to appeal was dismissed.

Orders