Abdifar v The Queen - [2012] VSCA 66

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0401

SAM ABDIFAR
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2012
DATE OF JUDGMENT:	19 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 66
JUDGMENT APPEALED FROM:	R v Abdifar (Unreported, County Court of Victoria, Judge Pilgrim, 18 October 2010)

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CRIMINAL LAW – Sentencing – Total effective sentence of 7 years and 6 months for multiple offences related to two home invasion incidents – Whether sentencing judge had proper regard to bipolar condition – Sentence of 6 years’ imprisonment for second aggravated burglary manifestly excessive – Resentenced to 4 years’ imprisonment for that offence – Sentencing judge had moderated and cumulated other individual sentences after treating second aggravated burglary as base sentence – Sentence of 2 years’ imprisonment for intentionally causing serious injury required increase – No change to overall total effective sentence – Non-parole period of 5 years and 9 months not manifestly excessive

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Hollingworth AJA.

HOLLINGWORTH AJA:

Introduction

The appellant appeals against a total effective sentence of 7 years and 6 months’ imprisonment, with a non-parole period of 5 years and 9 months, which was imposed on him on 18 October 2010, following his plea of guilty to the following offences:

Charge

Offence

Maximum

Sentence

Cumulation

1

Aggravated burglary

25 years’ imprisonment

4 years’ imprisonment

1 year

2

Theft

10 years’ imprisonment

18 months’ imprisonment

3

Common assault

5 years’ imprisonment

6 months’ imprisonment

4

Criminal damage

10 years’ imprisonment

1 year’s imprisonment

5

Causing injury intentionally

10 years’ imprisonment

2 years’ imprisonment

6

Common assault

5 years’ imprisonment

6 months’ imprisonment

7

Aggravated burglary

25 years’ imprisonment

6 years’ imprisonment

Base sentence

8

Causing serious injury intentionally

20 years’ imprisonment

2 years’ imprisonment

6 months

9

Possession of drug of dependence (steroid)

5 years’ imprisonment

3 months’ imprisonment

10

Possession of drug of dependence (MDMA)

5 years’ imprisonment

3 months’ imprisonment

Charge

Offence

Maximum

Sentence

Cumulation

Summary offence

Possession of prohibited weapon (crossbow)

2 years’ imprisonment

6 months’ imprisonment

Summary offence

Possession of property reasonably suspected of being proceeds of crime ($4,125)

2 years’ imprisonment

6 months’ imprisonment

Total effective sentence

7 years and 6 months’ imprisonment

Non-parole period

5 years and 9 months’ imprisonment

The appellant’s two co-offenders, Serkan Kahya and Niko Lauina, were sentenced on 29 April 2011, by a different County Court judge. Kahya has appealed against his sentence, on the ground of disparity with the appellant’s sentence. Given the nature of Kahya’s appeal, which was heard immediately after this appeal, it is convenient to set out the facts of the entire offending here, in order to understand the respective roles of the co-accused.

The primary victim, Michael Di Stella, met the appellant through a mutual acquaintance, some weeks…

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 Abdifar v The Queen

Details

AGLC: Abdifar v The Queen [2012] VSCA 66
Case: [2012] VSCA 66
Decision Date: 19 April 2012

CaseChat Overview and Summary

The appellant, Abdifar, was convicted of multiple offences including two home invasion incidents. The case was heard in the Court of Appeal, where the primary issue was whether the sentencing judge had adequately considered the appellant’s bipolar condition when determining the sentence. The appellant contested the severity of the sentence, specifically the 6-year imprisonment term for the second aggravated burglary, arguing it was manifestly excessive. The Crown maintained that the sentence was appropriate given the seriousness of the crimes and the need for deterrence.

The court examined the sentencing principles and the individual sentences imposed for each offence. It found that the sentencing judge had properly moderated and cumulated the sentences, treating the second aggravated burglary as the base sentence. However, the court concluded that the 6-year imprisonment term for that offence was manifestly excessive. Consequently, the sentence was reduced to 4 years. The court also determined that the 2-year imprisonment term for intentionally causing serious injury required an increase but maintained the overall total effective sentence. Ultimately, the non-parole period of 5 years and 9 months was deemed not manifestly excessive.

The Court of Appeal, while reducing the sentence for the second aggravated burglary, affirmed the overall sentence structure. The appellant's sentence for the second aggravated burglary was thus reduced to 4 years, but the total effective sentence remained at 7 years and 6 months. The non-parole period was adjusted to reflect the changes, but the court found it to be appropriate.

Orders