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Ahmed Mohamed v The Queen

Ahmed Mohamed v The Queen

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Case Copied 13 July 2022 38 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0032

AHMED MOHAMED	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, EMERTON and SIFRIS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2022
DATE OF JUDGMENT:	13 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 136
JUDGMENT APPEALED FROM:	[2019] VSC 775 (Beale J)

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CRIMINAL LAW – Appeal – Sentence – Terrorism offences – Total effective sentence 38 years – Non-parole period 28 years and 6 months – Cumulation on existing sentence – Whether sentence manifestly excessive – Principle of totality – Avoidance of crushing sentence – Public interest in promoting rehabilitation – Reasonable prospects of rehabilitation – Young offender – Denunciation of Islamic State – Family hardship – Crown concession – Failure to take into account relevant consideration – Appeal allowed – Applicant resentenced – Total effective sentence 32 years – Non-parole period 24 years – DPP v Bowen [2021] VSCA 355, Azzopardi v The Queen (2011) 35 VR 43, Totaan v The Queen [2022] NSWCCA 75, Markovic v The Queen (2010) 30 VR 589 – Crimes Act 1994 (Cth) ss 16A(1), 16A(2)(p).

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Counsel
Applicant:		Mr D Dann QC with Mr C Parkin
Respondent:		Mr N Robinson QC with Ms K Breckweg
Solicitors
Applicant:	Lawyers Corp
Respondent:	Mr S Bruckard, Commonwealth Solicitor for Public Prosecutions

MAXWELL P
EMERTON JA
SIFRIS JA:

Summary

This is a most unusual sentence appeal. As will appear, the applicant was sentenced twice within a matter of months for two separate terrorism offences. On the first occasion, in July 2019, he was sentenced to 22 years’ imprisonment. On the second occasion, in November 2019, he was sentenced to 26 years’ imprisonment.
Those are, plainly, very substantial sentences of imprisonment. Yet the applicant has not sought leave to appeal against either sentence. The only complaint he now brings to this Court concerns the order for cumulation made on the second occasion. The judge ordered that 16 years of the second sentence should be served cumulatively on the first sentence of 22 years, giving a total effective sentence of 38 years.
The applicant makes no separate attack on the non-parole period of 28 years and 6 months, as it represented the statutorily-prescribed proportion of the head sentence. The non-parole period would need to be adjusted downwards proportionately should the challenge to the total effective sentence succeed.
The question for determination, therefore, is a question of totality. As this Court said recently in Director of Public Prosecutions v Bowen:[1]
The principle of totality is, essentially, a principle of proportionality. Put another way, totality is a particular expression of the foundational sentencing principle that a sentence should be proportionate to the criminal conduct for which it is imposed. In the ordinary case where sentence is to be imposed for multiple offences, the principle of totality requires the court to ask itself whether the proposed total effective sentence is proportionate to the aggregate criminality involved in all of the offending.[2]
[1][2021] VSCA…

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: [2022] VSCA 136
Decision Date: 13 July 2022

CaseChat Overview and Summary

Ahmed Mohamed was convicted of terrorism offences and sentenced to a total effective term of 38 years, with a non-parole period of 28 years and 6 months, to run cumulatively with an existing sentence. Mohamed appealed the severity of the sentence, arguing that it was manifestly excessive. The appeal was heard by the Court of Appeal. The central issue in the appeal was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the principle of totality, the avoidance of a crushing sentence, and the public interest in promoting rehabilitation. The Court of Appeal examined whether the sentence imposed was disproportionate to the offending and whether it denied the offender a reasonable prospect of rehabilitation.

The Court of Appeal considered the principle of totality, which requires that the total period of imprisonment, including any cumulative sentences, should not be excessive. It also assessed whether the sentence was crushing and whether it denied Mohamed a reasonable prospect of rehabilitation. The court noted that Mohamed was a young offender with potential for rehabilitation and that he had denounced the Islamic State. The court also took into account the family hardship caused by the sentence. The Crown conceded that the sentence was excessive, and the Court of Appeal accepted this concession. The trial judge had failed to take into account the principle of totality and the potential for rehabilitation.

The Court of Appeal allowed the appeal and resentenced Mohamed to a total effective term of 32 years, with a non-parole period of 24 years. The Court of Appeal considered the relevant authorities and statutes, including DPP v Bowen, Azzopardi v The Queen, Totaan v The Queen, Markovic v The Queen, and sections 16A(1) and 16A(2)(p) of the Crimes Act 1994. The Court of Appeal's decision balanced the need for denunciation and deterrence with the principles of rehabilitation and proportionality. The final orders of the Court of Appeal reduced the total effective sentence and the non-parole period to reflect the appropriate balance of these considerations.

Orders