Ahmed El-Lababidi v The Queen - [2018] VSCA 116

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0065

AHMED EL-LABABIDI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE, KYROU and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2018
DATE OF ORDERS:	1 May 2018
DATE OF JUDGMENT:	9 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 116
JUDGMENT APPEALED FROM:	DPP v El-Lababidi (Unreported, County Court of Victoria, Judge Smith, 19 March 2018)

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CRIMINAL LAW – Appeal – Sentence – One charge of intentionally causing injury (charge 3), two charges of resisting emergency worker on duty, one charge of failing to answer bail – Charge 3 involved injury to police officer – Sentencing Act 1991 s 10AA(4) prescribed minimum sentence of 6 months’ imprisonment for that charge unless court finds under section 10A ‘special reason exists’ – Magistrate found special reason existed based on applicant’s impaired mental functioning at time of offence and imposed 2-year community correction order – On appeal by Director of Public Prosecutions, County Court judge found no special reason existed and imposed sentence of 6 months’ imprisonment on charge 3 – Crown concessions that judge made findings on erroneous factual basis and denied applicant procedural fairness – Appeal allowed – Matter remitted to County Court with directions as to scope of further hearing – Sentencing Act 1991 ss 10AA, 10A – Criminal Procedure Act 2009 s 286.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr P J Smallwood	Starke Westwood Lawyers
For the Respondent	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

TATE JA

KYROU JA
ASHLEY JA:

Introduction

On 1 May 2018, this Court made the following order:

1 Leave to appeal is granted.
2 The appeal is allowed.
3The sentences imposed by the County Court in the orders made by Judge Smith on 19 March 2018 are set aside.

4 The matter is remitted to the County Court and it is directed that:
(a) the further hearing be conducted by a different judge;
(b)the scope of the further hearing be limited to the following questions for the Court:
(i)whether the appellant has discharged the onus of establishing that his impaired mental functioning substantially reduced his culpability, for the purpose of determining whether a ‘special reason’ exists within the meaning of s 10A(2)(c)(i) of the Sentencing Act 1991;
(ii)whether there are substantial and compelling circumstances that justify making a finding that a ‘special reason’ exists, for the purpose of s 10A(2)(e) of the Sentencing Act; and
(iii)what is the appropriate sentence in all the circumstances.

5The appellant attend upon the County Court for mention on Tuesday 8 May 2018 at 9:00 am.

In making the order, the Court accepted a concession by the Crown that the sentencing discretion had miscarried, and submissions by the parties that the matter should be remitted to the County Court for further hearing. We also accepted the applicant’s submission that the scope of the further hearing should be limited to the issues set…

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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Details

Case: [2018] VSCA 116
Decision Date: 9 May 2018

CaseChat Overview and Summary

The case of Ahmed El-Lababidi v The Queen involves the defendant appealing against his sentence for multiple charges, including intentionally causing injury to a police officer. The appeal was brought before the County Court of Victoria, and subsequently the Court of Appeal. The primary legal issue for the court was whether the County Court judge erred in concluding that no special reason existed to reduce the statutory minimum sentence for the charge of intentionally causing injury to a police officer, contrary to section 10AA(4) of the Sentencing Act 1991.

The court considered whether the County Court judge had made an error in fact and whether the defendant was denied procedural fairness. The Court of Appeal found that the County Court judge's decision was based on an erroneous factual foundation, specifically that the judge was incorrect in finding that the defendant's mental impairment did not constitute a special reason under section 10A of the Sentencing Act 1991. Furthermore, the Crown conceded that the County Court judge had not properly considered the evidence and arguments presented regarding the defendant's mental state, which led to a denial of procedural fairness. Consequently, the Court of Appeal allowed the appeal, holding that the County Court's sentence was legally flawed and the defendant was not given a fair opportunity to present his case.

The Court of Appeal remitted the matter back to the County Court for a further hearing, providing specific directions to ensure that the defendant's mental impairment was properly considered as a potential special reason under section 10A of the Sentencing Act 1991. This decision highlights the importance of ensuring that all relevant factors are appropriately weighed and considered when imposing a sentence, particularly in cases where a defendant's mental state may impact the outcome of the sentencing process.

Orders