| 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…
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- AGLC
- Aden v The King [2024] VSCA 21
- Case
- [2024] VSCA 21
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
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