DPP v Shekhe and Abdullahi (County Court, Judge Wischusen, 18 November 2022)
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CRIMINAL LAW – Appeal – Sentence – One charge of rape, two charges of sexual assault – Conviction after trial – Total effective sentence 7 years – Non-parole period 4 years and 6 months – Co-offender sentenced to 4 years and 6 months’ imprisonment – Co-offender pleaded guilty – Parity between sentences – Whether sentence manifestly excessive – Application for leave to appeal refused.
On 7 October 2022, the applicant was convicted by a County Court jury of rape and other sexual offences. On 18 November 2022 he was sentenced as follows:[1]
[1]DPP v Shekhe and Abdullahi (County Court, Judge Wischusen, 18 November 2022) (‘Sentencing Remarks’).
The applicant’s co-offender, Sidi Shekhe, had pleaded guilty to one charge of rape on 29 September 2022. He was sentenced at the same time as the applicant as follows:
The applicant sought leave to appeal on the following grounds:
1.The learned sentencing judge erred by imposing on the applicant a sentence that, when regard is had to the sentence imposed on the co-offender Shekhe, breached the principle of parity.
2.The sentence imposed on charge 2 and the non-parole period are manifestly excessive in all of the circumstances, and particularly in light of the prospect of the applicant being deported upon completion of his sentence.
On 12 May 2023, Kyrou JA refused the application.[2] The applicant elected to renew his application for determination by a court comprising at least two judges.[3]
[3]Criminal Procedure Act 2009, s 315(2); Supreme Court (Criminal Procedure) Rules 2017, r 2.25(1)(b). The matter was first listed for hearing early in 2024 but was adjourned in order to enable the applicant to try to find legal representation. No such representation was obtained.
For the reasons…
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.
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AGLC
Abdullahi v The King [2024] VSCA 156
Case
[2024] VSCA 156
Decision Date
CaseChat Overview and Summary
The applicant, Abdullahi, appealed against his sentence for one count of rape and two counts of sexual assault, following a trial. The case was heard in the Supreme Court of Victoria. Abdullahi was sentenced to a total effective term of seven years imprisonment, with a non-parole period of four years and six months. This was despite his co-offender, who pleaded guilty to similar charges, receiving the same sentence. The primary legal issue before the court was whether Abdullahi’s sentence was manifestly excessive, particularly in light of the parity principle which suggests that co-offenders should receive similar sentences.
The court considered the principle of parity in sentencing and noted that while it is important to ensure co-offenders receive comparable sentences, it is not an absolute rule. The court examined the seriousness of the offences, Abdullahi’s criminal history, and the need for general deterrence. It held that the sentence was not manifestly excessive as it took into account the relevant aggravating and mitigating factors. The court was persuaded by the precedent set in Nipoe v The Queen and Kellway (a pseudonym) v The King, which supported the notion that a sentence within the range of sentences imposed for similar crimes does not necessarily render it excessive.
Consequently, the court dismissed the application for leave to appeal against sentence. The court found that Abdullahi’s sentence was proportionate to the gravity of the offences and was not manifestly excessive. The ruling upheld the original sentence of seven years, with a non-parole period of four years and six months.