Al-Bab v The King - [2025] VSCA 22

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0148

ALI AL-BAB	Applicant
v
THE KING	Respondent

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JUDGES:	T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	28 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 22	First revision (4 March 2025): para [25]
JUDGMENT APPEALED FROM:	[2022] VCC 976 (Judge Moglia)

APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO s 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pleaded guilty to multiple offences including aggravated burglary – Whether judge erred in assessing gravity of offence – Whether applicant was ‘doubly-punished’ for aggravated burglary – Screwdriver not classified as an offensive weapon – Offending correctly classified as moderately serious – Victim present during burglary – Leave to appeal refused.

Crimes Act 1958, ss 77(1), 320A(4).

Brown v The Queen [2021] VSCA 204; Salvaggio v The Queen [2022] VSCA 88, applied.

CRIMINAL LAW – Sentence – Application for leave to appeal – Total effective sentence 3 years and 9 months’ imprisonment – Non-parole period of 2 years and 6 months – Whether sentence was manifestly excessive – Moderately serious offence – Significant criminal history – Sentence imposed for aggravated burglary was 12% of maximum sentence – Manifest excess not reasonably arguable – Leave to appeal refused.

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Counsel
Applicant:		Mr S Cooper
Respondent:		Ms S Goegan
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA:

The applicant pleaded guilty at the County Court in Melbourne to various criminal offences. The table below sets out those offences and the sentences imposed upon them.

Charge on indictment

Offence

Maximum Penalty

Sentence

Cumulation

1

Aggravated burglary — person present[1]

25 years’ imprisonment

3 years’ imprisonment

Base

2

Possession of a drug of dependence[2]

1 year imprisonment

2 months’ imprisonment

Nil

3

Prohibited person possess a firearm[3]

10 years’ imprisonment

1 year and 3 months’ imprisonment

6 months

4

Recklessly deal with proceeds of crime[4]

10 years’ imprisonment

8 months’ imprisonment

2 months

23

Possessing cartridge ammunition without a licence, permit or exemption[5]

40 penalty units

Convicted and discharged

N/A

31

Dealing with property suspected to be the proceeds of crime[6]

2 years’ imprisonment

6 months’ imprisonment (aggregate)

1 month

32

Dealing with property suspected to be the proceeds of crime

2 years’ imprisonment

Total Effective Sentence:

3 years and 9 months’ imprisonment

Non-Parole Period:

2 years and 6 months’ imprisonment

Pre-sentence Detention Declared:

450 days

Section 6AAA Statement:

5 years’ imprisonment with a non-parole period of 3 years

Other relevant orders

Forfeiture and disposal orders

[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 5(1) of the Firearms Act 1996.
[4]Contrary to s 194(3) of the Crimes Act 1958.
[5]Contrary to s 124(1) of the Firearms Act 1996.
[6]Contrary to s…

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 Al-Bab v The King

Details

AGLC: Al-Bab v The King [2025] VSCA 22
Case: [2025] VSCA 22
Decision Date: 28 February 2025

CaseChat Overview and Summary

The applicant, Al-Bab, appealed the sentence imposed by the County Court of Victoria, seeking leave to appeal the decision. He pleaded guilty to multiple offences, including aggravated burglary, where he entered a property with a screwdriver, causing fear to the victim present in the house. The County Court sentenced him to a total effective sentence of three years and nine months' imprisonment, with a non-parole period of two years and six months. The applicant argued that the judge erred in assessing the gravity of the offence, particularly in relation to the classification of the screwdriver as an offensive weapon, and that he was "doubly-punished" for the aggravated burglary.

The legal issues before the court were whether the judge erred in assessing the gravity of the offence and whether the sentence imposed was manifestly excessive. The court considered the principles of sentencing, as outlined in Brown v The Queen and Salvaggio v The Queen, in determining whether the sentence was manifestly excessive. The court also assessed whether the applicant's criminal history warranted a more severe sentence, and whether the sentence imposed for the aggravated burglary was a disproportionate proportion of the maximum sentence.

The court found that the judge did not err in assessing the gravity of the offence, as the screwdriver was not classified as an offensive weapon. The court also found that the offence was correctly classified as moderately serious and that the sentence imposed was not manifestly excessive. The court considered the applicant's significant criminal history and the fact that the victim was present during the burglary, which warranted a more severe sentence. The court found that the sentence imposed for the aggravated burglary was 12% of the maximum sentence, which was not a manifestly excessive proportion. Therefore, the court refused the application for leave to appeal.

No further orders were made by the court.

Orders