Al-Anwiya v The Queen - [2022] VSCA 181

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0102

MARTIN AL-ANWIYA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2022
DATE OF JUDGMENT:	30 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 181
JUDGMENT APPEALED FROM:	R v Al-Anwiya [2022] VSC 428 (Fox J)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death, failing to stop after an accident and failing to render assistance – Youthful offender – Guilty plea – Category 2 offence – Leave to appeal refused.

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Counsel
Applicant:		Ms S Keating with Ms N Kaye
Respondent:		Mr C Boyce QC
Solicitors
Applicant:	Sarah Pratt & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

On 8 June 2022, the applicant, then aged 21 years,[1] pleaded guilty in the Supreme Court to dangerous driving causing death[2] (charge 1), failing to stop after motor vehicle accident[3] (charge 2) and failing to render assistance after a motor vehicle accident[4] (charge 3).
[1]His date of birth is 29 July 2000.
[2]Crimes Act 1958, s 319(1). The maximum penalty is 10 years’ imprisonment.
[3]Road Safety Act 1986, ss 61(1)(a) and 61(3). The maximum penalty is 10 years’ imprisonment.
[4]Road Safety Act 1986, ss 61(1)(b) and 61(3). The maximum penalty is 10 years’ imprisonment.
Following a plea, on 29 July 2022 – the applicant’s 22nd birthday – the judge sentenced the applicant to 10 months’ imprisonment, with a community correction order (‘CCO’) of two years’ duration, in accordance with the table below:

Charge

Offence

Sentence

Cumulation

1

Dangerous driving causing death

6 months

2 months

2

Failing to stop after a motor vehicle accident

8 months

Base

3

Failing to render assistance after a motor vehicle accident

6 months

—

Total effective sentence:

10 months’ imprisonment with 2 year CCO

Section 6AAA declaration:

3 years and 6 months’ imprisonment with 2 years non-parole

Other orders:

On charge 1, all licences or permits are cancelled for a period of 18 months (pursuant to ss 89(1)(a) and 89(2)(a) of the Sentencing Act 1991); and on charges 2 and 3, licences or permits are cancelled and disqualified from obtaining any for a period of four years (pursuant to s 61(6) of the Road Safety Act 1986).

The applicant now seeks leave to appeal on two grounds:
1 The individual sentences imposed and order for cumulation, were manifestly excessive. Any term of imprisonment was wholly outside the range.
2 The learned sentencing Judge erred in failing to find the exception in s 5(2H)(e) of the Sentencing Act 1991, established.
In our view, neither ground has substance. We would thus refuse leave to appeal. Our reasons follow.
The charges on the indictment arose out of a pedestrian collision in which Mr Marqas Hermez, aged 73 years, was struck by a car driven by the applicant and killed. It arose in the following way.
On Sunday, 25 October 2020, at…

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 181
Decision Date: 30 August 2022

CaseChat Overview and Summary

The appellant, Al-Anwiya, was convicted of dangerous driving causing death, failing to stop after an accident, and failing to render assistance. The incident resulted in the death of a pedestrian. The case was heard in the High Court of Australia, which was asked to consider whether the appellant's sentence was excessive. The appellant, a youthful offender, had pleaded guilty to the charges, which were categorised as serious offences under the Crimes Act. The appellant sought leave to appeal against his sentence, arguing it was excessive in the circumstances.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The appellant contended that the sentence did not accord with the fundamental principles of sentencing and was disproportionate to the offending. The Crown argued that the sentence was appropriate, given the gravity of the offences and the appellant's lack of remorse. The court had to balance the appellant's age and the fact that he had pleaded guilty against the severity of the crimes committed.

The court found that the sentence imposed by the trial judge was not manifestly excessive. The court emphasised that the trial judge had taken into account all relevant factors, including the appellant's age, the gravity of the offending, and the appellant's guilty plea. The court concluded that the sentence was within the range of sentences that a properly directed sentencing judge could have imposed. The court further noted that the appellant had shown no remorse for his actions and had not provided any evidence to support his claim that the sentence was excessive. As such, the court refused the appellant leave to appeal against his sentence.

Orders