JUDGES:	REDLICH and BEACH JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 November 2015
DATE OF JUDGMENT:	17 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 359
JUDGMENT APPEALED FROM:	[2015] VCC 330 (Judge Parsons)

---

CRIMINAL LAW – Appeal – Sentence – Multiple armed robberies committed in a group – Two applicants (A1 and A2) co-offenders in group – A1 sentenced to 4y, 4m imprisonment and 4y Community Corrections Order (CCO) – Breach of Sentencing Act 1991 s 11 by failure to fix non-parole period – Deng-Mabior v The Queen [2015] VSCA 179; Boulton v The Queen [2014] VSCA 342 considered – Whether certain individual sentences, total effective sentence or combined effect of total effective sentence and CCO manifestly excessive – No direct nexus between Verdins disorder and offending – General and specific deterrence incorrectly moderated – CCO not alternative to imprisonment in every case – Appeal allowed – Non-parole period of 3y, 10m fixed – Total effective sentence and CCO unaltered – R v Verdins (2007) 16 VR 269; DPP v O’Neill [2015] VSCA 325; DPP v Terrick (2009) 24 VR 457 considered – Sentencing Act 1991 ss 11, 13, 44.

CRIMINAL LAW – Appeal – Sentence – A2 sentenced to 8y imprisonment, non-parole period 6y – Whether individual sentences, non-parole period and total effective sentence contrary to parity principle – Whether parity principle confined to lowest sentence passed on co-offender – Parity principle informed by sentences of all comparable co-offenders – No error in differentiating A1 and A2 – A2 as leading participant in offences – A1 with notably disadvantaged background and associated psychological issues – Whether non-parole period inconsistent with judge’s stated intention – No ‘usual’ non-parole period – No explanation for diverging from intention – Kumova v The Queen (2012) 37 VR 538; Wallace v The Queen [2012] VSCA 114 followed – Appeal allowed – Re-sentencing by reducing individual sentence on charge 2 to two years – Order for cumulation on charge 2 unaltered – Total effective sentence unaltered – Non-parole period of 5y fixed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant (Abdou)	Mr C T Farrington	Balmer & Associates
For the Applicant (Chebib)	Mr D D Gurvich	Emma Turnbull Lawyers
For the Crown	Mr B L Sonnet	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
BEACH JA
BEALE AJA:

The applicants Mohammed Abdou (‘Abdou’) and Ahmed Chebib (‘Chebib’) each seek leave to appeal against their sentences imposed in the County Court on 20 March 2015.[1]
[1]DPP v Abdou [2015] VCC 330 (‘Reasons’).

Abdou was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Attempted Armed Robbery
[Crimes Act 1958 s 75A(1) and 321M] 20 years’ imprisonment
[Crimes Act 1958 s 75A(2) and 321M] 4 year CCO, 600 hours community…

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 Abdou v The Queen

Details

AGLC: Abdou v The Queen [2015] VSCA 359
Case: [2015] VSCA 359
Decision Date: 17 December 2015

CaseChat Overview and Summary

In the case of Abdou v The Queen, two applicants, A1 and A2, were involved in multiple armed robberies committed as part of a group. A1 was sentenced to four years and four months in prison, followed by a four-year Community Corrections Order (CCO), while A2 received a sentence of eight years imprisonment with a non-parole period of six years. Both applicants appealed their sentences, raising various legal issues regarding the appropriateness of their sentences and the application of the parity principle.

The court had to determine whether the individual sentences imposed on A1 and A2 were excessive, taking into account the principles of general and specific deterrence, and whether the total effective sentence and CCO for A1 were manifestly excessive. Additionally, the court had to assess if the non-parole period for A2 and the total effective sentence for both applicants were consistent with the parity principle. The court also considered whether the non-parole period for A2 was inconsistent with the judge's stated intention.

The court found that the original sentences imposed on A1 and A2 contained errors. For A1, the court determined that the non-parole period should be fixed at three years and ten months, but the total effective sentence and CCO remained unaltered. The court concluded that the original non-parole period breached the Sentencing Act 1991, section 11, and that the general and specific deterrence considerations were incorrectly moderated. Regarding A2, the court found that the individual sentence was not contrary to the parity principle, as the judge had appropriately considered the roles and backgrounds of the co-offenders. However, the court reduced the individual sentence on charge 2 to two years, while maintaining the order for cumulation on that charge and the total effective sentence. The non-parole period for A2 was fixed at five years.

The final orders of the court included fixing the non-parole period of A1's sentence at three years and ten months and reducing the individual sentence on charge 2 for A2 to two years, with the non-parole period set at five years. The total effective sentences and CCO for both applicants remained unchanged.

Orders