Ahmad v The Queen - [2015] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0138

ALI AHMAD

Appellant

THE QUEEN

Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2015
DATE OF JUDGMENT:	17 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 23
JUDGMENT APPEALED FROM:	DPP v Ahmad (Unreported, County Court of Victoria, Judge McInerney, 4 June 2014)

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CRIMINAL LAW – Sentence – Affray – Appellant pleaded guilty to affray and other offences – Appellant sentenced to 3 months' imprisonment and 3 year community correction order for affray - Sentence cumulated on sentence of 590 days' imprisonment for other offences - Youthful offender – Whether sentence for affray manifestly excessive – Totality – Whether sentence offended principle of totality – Sentence not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S R Johns with Mr B W Johnston	C Marshall & Associates
For the Crown	Mr D A Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

On 9 May 2014, the appellant pleaded guilty to a number of indictable and related summary offences on two separate indictments. The appellant was sentenced in respect of those offences on 3 June 2014 as follows:

Charge Offence Maximum Sentence Cumulation

Indictment C1208541.3

1 Affray [contrary to Common Law] 5 years 3 months’ imprisonment, and 3 year Community Correction Order (‘CCO’) with 250 hour community work condition 3 months from 3 June 2014

Indictment C12955862.1

1 Trafficking [Drugs Poisons and Controlled Substances Act 1981 s 71AC] 15 years 590 days Base

2 Robbery [Crimes Act 1958 s 75A (1)] 15 years 590 days –

3 Intentionally cause injury [Crimes Act 1958 s 18] 10 years 300 days –

4 Possession of a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 73] 1 year 20 days –

5 Possession of counterfeit money [Crimes (Currency) Act 1981 (Cth) s 9(1)(a)] 10 years 2 months Served concurrently from 3 June 2014

6 Make threat to cause serious injury [Crimes Act 1958 s 21] 5 years 400 days –

Summary Charge 8 Store ammunition in an insecure manner [Firearms Act 1996 s 129A] 4 years 180 days –

Summary Charge 9 Possession of a prohibited weapon [Control of Weapons Act 1990 s 5AB(1)] 2 years 250 days –

Summary Charge 13 Possession of a controlled weapon [Control of Weapons Act 1990 s 6(1)] 1 year 180 days –

Total Effective Sentence: 674 days imprisonment and a 3 year
Community Correction Order with a 250 hour
community work condition[1]

Pre-sentence Detention Declared: 590 days reckoned as pre-sentence detention

6AAA Statement: 842 days imprisonment

Other orders: Forensic sample ordered pursuant to Crimes Act 1958 s 464ZF(2), Forfeiture Order (Cth); Disposal Order.
[1]The practical effect of this sentence was that the sentences with respect to the trafficking and robbery offences were served concurrently during the entire 590 days of pre-sentence custody (which also included the…

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 Ahmad v The Queen

Details

AGLC: Ahmad v The Queen [2015] VSCA 23
Case: [2015] VSCA 23
Decision Date: 17 February 2015

CaseChat Overview and Summary

The appellant, Ahmad, faced the High Court of Australia in an appeal against his sentence for his involvement in an affray and other related offences. The case arose from a dispute where Ahmad pleaded guilty to charges of affray, assault, and unlawful use of a motor vehicle. The primary issue in the appeal was whether the sentence imposed for the offence of affray was manifestly excessive, particularly given Ahmad's status as a youthful offender. Furthermore, the appeal examined whether the total sentence, when cumulated with the sentence for the other offences, contravened the principle of totality in sentencing.

The court considered the principles of sentencing in the context of the offence of affray, which included the culpability of the offender, the nature and circumstances of the offence, and the necessity of deterrence and denunciation. The court assessed the totality principle, which requires that the overall sentence should not be more than the sum of the appropriate sentences for each offence. In this case, the sentence for the affray was 3 months' imprisonment and a 3-year community correction order, cumulated with a sentence of 590 days' imprisonment for the other offences. The court found that the sentence for the affray, while not lenient, was not manifestly excessive when viewed in the context of the totality of the offending and the principles of sentencing.

The High Court held that the sentence for the offence of affray was not manifestly excessive, considering the nature of the affray and the offender's culpability. The court also found that the cumulative sentence did not offend the principle of totality. Consequently, the appeal was dismissed, affirming the sentence imposed by the lower court.

Orders