Aden v The King - [2024] VSCA 21

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0166

HAYYU ADEN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF JUDGMENT:	6 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 21
JUDGMENT APPEALED FROM:	[2023] VCC 154 (Judge Dalziel)

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CRIMINAL LAW – Leave to appeal – Sentence – Application for extension of time – Manifest excess – Whether judge failed to have regard to double punishment – Possession of handgun by prohibited person constituted additional criminality warranting separate punishment – Whether judge failed to give adequate weight to hardship – Submission as to adequate weight not made to sentencing judge – Proposed grounds meritless – Application refused.

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Counsel
Applicant:		Mr C Mylonas
Respondent:		Ms J Warren
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
BOYCE JA:

On 28 October 2022, the applicant, who is 27 years old,[1] pleaded guilty in the County Court to attempted armed robbery[2] (charge 1), recklessly causing injury[3] (charge 2), prohibited person possessing a firearm[4] (charge 3) and a related summary offence of committing an indictable offence whilst on bail[5] (charge 8).
[1]The applicant was born on 21 August 1996.
[2]Contrary to Crimes Act 1958, ss 75A and 321M.
[3]Contrary to Crimes Act 1958, s 18.
[4]Contrary to Firearms Act 1996, s 5.
[5]Contrary to Bail Act 1977, s 30B.
On 9 February 2023, a judge of the County Court sentenced the applicant as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted armed robbery	20 years	3 years and 6 months	Base
2	Recklessly cause injury	5 years	1 year	6 months
3	Prohibited person possess firearm	10 years or 1200 penalty units	2 years	9 months
Related Summary Offence
8	Commit indictable offence whilst on bail	3 months or 30 penalty units	2 months	1 month
Total Effective Sentence:		4 years and 10 months
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		569 days
Section 6AAA Statement:		Total Effective Sentence: 6 years Non Parole-Period: 4 years
Other Relevant Orders: 1. Forfeiture order

In his written case, the applicant sought an extension of time to apply for leave to appeal against sentence on the following proposed grounds:
1.The Learned Judge erred in failing to not double punish the applicant for the possession of the firearm.
2.The Learned Judge erred in placing no weight on the hardship caused to the applicant as he is unable to care for his mother and brother.
3.The Learned Judge erred in imposing a sentence that was manifestly excessive.
At the hearing, the applicant pressed ground 3 (manifest excess) and invited the Court to treat his arguments on grounds 1 and 2 as being particulars of ground 3.

The facts

On 2 October 2020, the victim contacted the applicant via ‘Skout’, a social networking and dating App. The victim was using Skout to facilitate a meeting for casual sex. Between 2 and…

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 Aden v The King

Details

AGLC: Aden v The King [2024] VSCA 21
Case: [2024] VSCA 21
Decision Date: 6 March 2024

CaseChat Overview and Summary

In the matter of Aden v The King, the appellant sought leave to appeal against his sentence imposed for possession of a handgun by a prohibited person. The respondent, the Crown, opposed the application. The case was heard in the High Court of Australia. The appellant argued that the trial judge had failed to consider the principle of double punishment and had not given sufficient weight to the hardship resulting from the sentence. The Crown contended that the application was without merit and should be dismissed.

The primary legal issue before the court was whether the trial judge had failed to consider the principle of double punishment, which requires that the same conduct should not be punished twice. Additionally, the court needed to determine if the trial judge had failed to give adequate weight to the hardship the appellant would face as a result of the sentence. The Crown argued that the proposed grounds for appeal were meritless and did not warrant leave to appeal.

The High Court found that the appellant's arguments regarding the principle of double punishment were misplaced, as the possession of a handgun by a prohibited person constituted additional criminality warranting separate punishment. The court also held that the submission regarding the weight of hardship was not made to the sentencing judge and, therefore, could not be considered on appeal. Consequently, the court held that the proposed grounds of appeal were meritless, and the application for leave to appeal was refused.

No further orders were made by the court.

Orders