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Abbas v The King

Abbas v The King

Case [2025] VSCA 116 27 May 2025

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0041

HAMZA ABBAS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2025
DATE OF JUDGMENT:	27 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 116
JUDGMENT APPEALED FROM:	[2019] VSC 775 (Beale J)

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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of conspiracy to do acts in preparation for or planning a terrorist act – Co‑conspirators convicted of separate terrorism offending – Total effective sentence of co‑conspirators reduced on appeal on application of totality principle by lessening period of cumulation between sentences – Whether marked disparity in sentences relevant to common offending has resulted – Whether applicant has a justifiable sentence of grievance – Differences in sentences explicable by objective criteria – Application for extension of time in which to seek leave to appeal granted – Application for leave to appeal refused.

Crimes Act 1914 (Cth), s 19AB(2).

Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Kellway v The King [2023] VSCA 109; Mohamed v The Queen (2022) 367 FLR 482; Mohamed v The King [No 2] [2023] VSCA 177; Chaarani v the King [2023] VSCA 275; Kelly v R [2017] NSWCCA 256; Wood v R [2022] NSWCCA 84, referred to.

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Counsel
Applicant:		Mr C Parkin
Respondent:		Mr N Robinson KC
Solicitors
Applicant:	Lawyers Corp
Respondent:	Mr M De Crespigny, Solicitor for Public Prosecutions (Cth)

PRIEST JA:

I agree with Taylor JA, whose reasons for judgment I have had the considerable advantage of reading in draft.

TAYLOR JA:

Introduction

On 2 November 2018 the applicant and two co‑offenders, Abdullah Chaarani (‘Chaarani’) and Ahmed Mohamed (‘Mohamed’), were each convicted by a Supreme Court jury of one charge of conspiring to do acts in preparation for or planning a terrorist act.
The offending related to an agreement to do an act or acts in preparation for or planning a mass casualty terrorist attack at Federation Square on or about Christmas Day 2016 (‘Federation Square offending’).
The applicant’s sentencing was deferred pending the outcome of a second trial involving Chaarani and Mohamed, but not the applicant.
On 9 May 2019 Chaarani and Mohamed were each found guilty by a Supreme Court jury of one charge of attempting to engage in a terrorist act and one charge of engaging in a terrorist act. That offending related to an attempt to burn down a mosque and a later act that successfully burnt down the same mosque (‘mosque offending’). It occurred during the same period as the Federation Square offending.[1]
[1]An appeal against conviction was dismissed. See Chaarani & Ors [2020] VSCA 88.
On 24 July 2019 Tinney J sentenced each of Chaarani and Mohamed to 22 years’ imprisonment for the mosque offending. A non‑parole period of 17 years was set.

On 29 November 2019 Beale J sentenced the applicant, Chaarani and Mohamed for the…

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 Abbas v The King

Details

AGLC: Abbas v The King [2025] VSCA 116
Case: [2025] VSCA 116
Decision Date: 27 May 2025

CaseChat Overview and Summary

In the case of Abbas v The King, the applicant, Mr Abbas, was convicted of conspiracy to engage in acts in preparation for or planning a terrorist act. The case was heard in the Supreme Court of Victoria, where Mr Abbas sought an extension of time to appeal his sentence and to appeal the sentence itself. The co-conspirators had their sentences reduced on appeal, applying the totality principle to lessen the period of cumulation between their sentences, leading to a marked disparity in the sentences for the common offending.

The central legal issues were whether the disparity in the sentences for the common offending was relevant and whether Mr Abbas had a justifiable grievance about his sentence. The court had to determine if the differences in sentences were explicable by objective criteria and whether Mr Abbas's sentence was just and appropriate in the circumstances.

The Supreme Court of Victoria found that the differences in sentences were explicable by objective criteria, such as the individual circumstances of each case and the principle of totality. The court held that Mr Abbas did not have a justifiable grievance about his sentence, as the sentencing judge had considered all relevant factors and applied the law correctly. The application for an extension of time to seek leave to appeal was granted, but the application for leave to appeal was refused.

The final orders of the court were that the application for an extension of time to seek leave to appeal was granted, but the application for leave to appeal was refused. The court found that the sentence imposed on Mr Abbas was appropriate and did not result in a marked disparity in sentences for the common offending.

Orders