Abdullahi v The King - [2023] VSCA 110

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0190

SACID ABDULLAHI	Applicant
v
THE KING	Respondent

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JUDGE:	KYROU JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	12 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 110
JUDGMENT APPEALED FROM:	DPP v Shekhe & 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 – Total effective sentence 7 years – Non-parole period 4 years and 6 months – Whether judge breached parity principle – Whether sentence manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Ms S Lenthall
Respondent:		Ms A Moran
Solicitors
Applicant:	Greg Thomas, Barrister & Solicitor
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA:

Introduction and summary

On 7 October 2022, the applicant was convicted by a County Court jury of the offences in the table below and on 18 November 2022 he was sentenced by a County Court judge as set out in that table.[1]
[1]DPP v Shekhe & Abdullahi (County Court, Judge Wischusen, 18 November 2022) (‘Sentencing remarks’).

Charge

Offence

Max Penalty

Sentence

Cumulation

1 Sexual assault [Crimes Act 1958, s 40(1)] 10 years 6 months Nil

2 Rape [Crimes Act, s 38(1)] 25 years 7 years Base

3 Sexual assault 10 years 6 months Nil

Total Effective Sentence: 7 years

Non-Parole Period: 4 years, 6 months

The applicant’s co-offender, Sidi Shekhe, pleaded guilty to one charge of rape on 29 September 2022. This was the day before his scheduled trial, and followed a sentence indication and a negotiated outcome. He was sentenced by the same judge on 18 November 2022 as follows:

Charge

Offence

Max Penalty

Sentence

Cumulation

1 Rape 25 years 4 years, 6 months N/A

Non-Parole Period: 3 years

Section 6AAA Statement:
7 years, 6 months

Non Parole-Period 5 years

The applicant now seeks leave to appeal on the following grounds:[2]
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.
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

In early August 2018, the 18 year old female victim of the offences committed by the applicant and Shekhe began corresponding with Shekhe via Facebook. On 17 August 2018, Shekhe telephoned her and asked her to go out with him that evening. Shekhe told her that he and a friend would pick her up. She eventually agreed.
Shekhe and the applicant arrived by car at the victim’s address at around 9:00 pm.…

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 Abdullahi v The King

Details

AGLC: Abdullahi v The King [2023] VSCA 110
Case: [2023] VSCA 110
Decision Date: 12 May 2023

CaseChat Overview and Summary

The appellant was convicted on one count of rape and two counts of sexual assault. He was sentenced to a total effective term of seven years imprisonment, with a non-parole period of four years and six months. The appellant appealed the sentence on the grounds that the judge had breached the parity principle and that the sentence was manifestly excessive. The court of appeal was required to determine whether the trial judge's sentence was lawful and appropriate in all the circumstances, and whether it breached the principle of parity, which requires that sentences for similar offences be comparable. The court was also required to determine whether the sentence was manifestly excessive, meaning it was outside the range of sentences that a reasonable court could have imposed.

The court of appeal held that the trial judge did not breach the parity principle, as the sentence was proportionate to the gravity of the offences and took into account the appellant's background and prospects of rehabilitation. The court also held that the sentence was not manifestly excessive, as it was within the range of sentences that a reasonable court could have imposed for similar offences. The court noted that the appellant had a history of violent offending and had shown little remorse for his crimes, and that the sentence reflected the seriousness of the offences and the need to protect the community.

The court of appeal refused the appellant's application for leave to appeal. The court held that the sentence was lawful and appropriate, and that there was no error in the trial judge's approach to sentencing. The court also held that the appellant's sentence was not manifestly excessive, and that there was no basis for interference with the sentence. The court noted that the appellant's sentence was consistent with sentences imposed for similar offences in other jurisdictions, and that the trial judge had given careful consideration to the appellant's background and prospects of rehabilitation.

No orders were made by the court of appeal.

Orders