Akram Karoumi v The Queen - [2017] VSCA 375

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0125

AKRAM KAROUMI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, TATE JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2017
DATE OF JUDGMENT:	15 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 375
JUDGMENT APPEALED FROM:	[2017] VCC 38 (Chief Judge Kidd)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Common law assault – Applicant instigator of grievance-driven confrontation – Head-butting and punching – Total effective sentence of 3 years and 11 months’ imprisonment – Non-parole period of 2 years and 4 months – Whether manifestly excessive – Whether proper weight given to utilitarian value of early guilty plea after application to withdraw plea – Whether judge erred in assessment of gravity of offence – Whether personal mitigating factors properly taken into account – No error – Application for leave to appeal refused – Director of Public Prosecutions v Meyers (2014) 44 VR 486 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Emma Turnbull Lawyers
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for
Public Prosecutions

MAXWELL P
TATE JA
BEALE AJA:

On 27 July 2016 Akram Karoumi (‘Karoumi’) pleaded guilty to one charge of aggravated burglary and one charge of common law assault. He was sentenced on 3 February 2017 as follows:[1]
[1]DPP v Karoumi [2017] VCC 38 (‘Reasons’).

Charge on Indictment Offence Maximum Sentence Cumulation

3
Aggravated Burglary (Person Present)

Crimes Act 1958 s 77(1)
25 years’ imprisonment 3 years and 8 months’ imprisonment Base

5

Common Law Assault

Common Law and Crimes Act 1958 s 320
5 years’ imprisonment 12 months’ imprisonment 3 months

Total Effective Sentence: 3 years and 11 months’ imprisonment

Non-Parole Period: 2 years and 4 months

Pre-sentence Detention Declared: 393 days

Section 6AAA Statement: 5 years and 4 months’ imprisonment with a non-parole period of 3 years and 9 months

Other relevant orders: Nil

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
3	Aggravated Burglary (Person Present) Crimes Act 1958 s 77(1)	25 years’ imprisonment	3 years and 8 months’ imprisonment	Base
5	Common Law Assault Common Law and Crimes Act 1958 s 320	5 years’ imprisonment	12 months’ imprisonment	3 months
Total Effective Sentence:	3 years and 11 months’ imprisonment
Non-Parole Period:	2 years and 4 months
Pre-sentence Detention Declared:	393 days
Section 6AAA Statement:	5 years and 4 months’ imprisonment with a non-parole period of 3 years and 9 months
Other relevant orders:	Nil

Karoumi now seeks leave to appeal on the single ground of manifest excess:

The sentence imposed on the charge of aggravated burglary, the sentence imposed on the charge of common law assault, the total effective sentence and the non-parole period fixed are each manifestly excessive.

Altercation at the spare parts business

On 15 October 2015 Karoumi and his friend, Mr Daod Hanna-Ishmoni (‘Hanna-Ishmoni’), went into a spare parts business in Campbellfield to enquire about a carburettor. Karoumi had been to this business before on two occasions to ask about car parts and a mechanical problem and there had been no difficulties in the interactions. On this occasion, a dispute arose between Karoumi and the owner about a car part not being available for sale. The dispute became heated and there was a push and shove between them. Two staff members, one a Mr A, separated them. As Karoumi and Hanna-Ishmoni were leaving, Karoumi made a general threat to return.

After leaving the business, Karoumi telephoned his son, Sanar Ghanim (‘Sanar’) 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 Akram Karoumi v The Queen

Details

AGLC: Akram Karoumi v The Queen [2017] VSCA 375
Case: [2017] VSCA 375
Decision Date: 15 December 2017

CaseChat Overview and Summary

Akram Karoumi sought to appeal against his sentence for aggravated burglary and common law assault, which resulted in a total effective sentence of 3 years and 11 months’ imprisonment, with a non-parole period of 2 years and 4 months. The case was heard by the Court of Appeal, which had to determine whether the sentence was manifestly excessive and if the trial judge had properly assessed the gravity of the offence and taken into account Karoumi's personal mitigating factors.

The primary legal issues before the court were whether the trial judge had erred in the weight given to the utilitarian value of Karoumi's early guilty plea after his application to withdraw it, and whether the trial judge had correctly assessed the gravity of the offence. The court was also tasked with examining whether the personal mitigating factors presented by Karoumi had been properly taken into account. The appeal hinged on whether the sentence imposed was manifestly excessive, and if the trial judge had erred in the assessment of the offence's gravity and the weight given to the early guilty plea.

The Court of Appeal found no error in the trial judge's assessment of the gravity of the offence, noting that Karoumi had instigated a grievance-driven confrontation resulting in significant violence, including head-butting and punching. The court upheld the trial judge's decision to consider the utilitarian value of the early guilty plea, despite Karoumi's application to withdraw it. Additionally, the court found that the personal mitigating factors presented by Karoumi had been properly considered. The court's reasoning was influenced by the principles outlined in Director of Public Prosecutions v Meyers, where it was determined that the sentence was not manifestly excessive.

As a result, the Court of Appeal dismissed Karoumi's application for leave to appeal. The total effective sentence of 3 years and 11 months’ imprisonment, with a non-parole period of 2 years and 4 months, was upheld.

Orders