Al-Bab v The King
[2025] VSCA 22
•28 February 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0148 |
| ALI AL-BAB | Applicant |
| v | |
| THE KING | Respondent |
---
| 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.
---
| 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 195 of the Crimes Act 1958.
The applicant filed an application for an extension of time in which to file a notice of appeal. This extension was granted administratively.
The proposed grounds of appeal are:
Ground 1: The sentencing judge erred by overstating the gravity of charge 1 as ‘moderately serious’.
Particulars:
(1)The sentencing judge impermissibly assessed the gravity of charge 1 by reference to the applicant having a weapon and thereby considered irrelevant matters and/or sentenced the applicant for acts for which he was not charged; and
(2)The gravity of the offending was not otherwise ‘moderately serious’ having regard to the circumstances of the case.
Ground 2: The base sentence imposed on charge 1 and, by extension, the total effective sentence and non-parole period, are manifestly excessive.
The offending
A Summary of Prosecution Opening was filed on the plea. Its contents were agreed. Relevantly, it reads as follows:
(4)Over the period of the offending Mr AL-BAB was in possession of an Oppo mobile phone (number ending in 914) and a second mobile phone (number ending in 586).
(5)On 8 September 2022 between 12:06 pm and 12:55 pm an unknown person entered a residential premise located at 2 Clyde Street Thornbury belonging to Alice PARK. The offender forced entry through a rear wooden door using a tool, causing damage to the lock, and gained entry. The offender has then ransacked several rooms within the house.
(6)Whilst inside the property the offender stole:
(a)Nike Kyrie Flytrap 5 Basketball shoes in black
(b)An unknown quantity of United States currency.
(7)At approximately 12:55 pm victim PARK returned to her property and disturbed the offender.
(8)PARK observed a black vehicle leaving from out the front of her address. PARK entered her home to find it ransacked and reported the incident to police.
Incident 1 (Charge 1 — Aggravated Burglary)
(9)At approximately 10:32 am on 9 September 2022 CCTV captured Mr AL-BAB utilising the lift of the building at 14 David Street Richmond. Mr AL-BAB resides at 217/14 David Street, Richmond. Mr AL-BAB is depicted wearing a dark ‘Nike’ Hoodie with an orange ‘Nike’ logo on the front, black and grey track pants and black runners with a pair of black sunglasses on his head.
(10)At 10:35 am on this day, Mr AL-BAB is further observed on CCTV driving a vehicle being a 2018 Mercedes E220 Sedan bearing registration plates ‘ATZ538’ out of the carpark.
(11)At 10.33 am Mr AL-BAB’s mobile phone pings off a phone tower approximately 650 metres from 14 David Street, Richmond. From 10:36 am to 11:42 am, there is a gap in Mr AL-BAB’s mobile phone data. The phone appears to be switched off or not in use.
(12)At approximately 11:20 am Mr AL-BAB forced entry to residential property 82 Mansfield Street, Thornbury belonging to Victim ROTH. Mr AL-BAB forced the rear door of the property to gain access utilising a screwdriver causing a loud ‘bang’ to the door as it snapped open.
(13)Mr ROTH was in the bathroom at the time and heard the noise. He left the bathroom and located Mr AL-BAB inside his house. Mr ROTH observed the following in relation to Mr AL BAB:
(a)He was holding a long screwdriver, approximately 20–30 centimetres in length. It was raised above his shoulder in his right hand.
(b)He was male with olive skin, about 5 feet 8 inches tall, a medium build and black hair.
(c)He was wearing a baseball cap, black ‘Ray-Ban style’ sunglasses, black tracksuit pants and a black hoodie with a bright coloured, possibly orange, logo being ‘Nike’ with a number on it.
(14)Mr ROTH ran from Mr AL-BAB and went into the study at the front of the house.
(15)Mr ROTH observed Mr AL-BAB leave his house via the side walkway of the property, get into the driver’s side of the vehicle ‘ATZ538’, which was parked outside 82 Mansfield Street, Thornbury, and drive off.
(16)At 11:25 am Mr ROTH called triple zero to report the incident.
(17)At 11:42 am on this day, Mr AL-BAB’s mobile phone pings off a phone tower approximately 4.8 kilometres from 82 Mansfield Street, Thornbury.
(18)At 12:08 pm, CCTV at 14 David Street Richmond captures vehicle ‘ATZ538’ entering the carpark of the complex.
(19)From 12:10 pm to 12:20 pm, CCTV at 14 David Street Richmond captures Mr AL-BAB utilising the lift of the building. Mr AL-BAB is again depicted wearing a dark ‘Nike’ Hoodie with an orange ‘Nike’ logo on the front, black and grey track pants, and black runners with a pair of black sunglasses worn on the head.
Police Investigation
(20)At approximately 11:29 am, Senior Constable ATKINS and Constable HOOD attend 82 Mansfield Street, Thornbury, after receiving the call through their police radio, and obtained a statement from Mr ROTH.
(21)At approximately 11:44 am, Leading Senior Constables POWER and CUMMINS subsequently attended 82 Mansfield Street Thornbury and took photographs of the interior and exterior of the property.
Search Warrant at 217/14 David Street, Richmond
(22)On 26 of September 2022, at approximately 9:15 am, Police from the Darebin Crime Investigation Unit and Southbank Uniform attended Mr AL-BAB’s residential address of 217/14 David Street, Richmond and executed two Search Warrants for the residential premises and underground carpark of this address.
(23)Prior to Police gaining access to the property, Mr AL-BAB decamped from the premises on foot, scaling roofs and walls of the building before exiting out onto David Street.
(24)During the execution of the search warrant, Police located numerous items including:
(a)A large, yellow‐handled screwdriver.
(b)A pair of black ‘Ansell’ gloves.
(c)Indian Rupee Currency, stolen from a property in Macleod in an aggravated burglary on 20 September 2022 (Summary Charge 31 - Dealing with Property Suspected of being Proceeds of Crime).
(d)Autumn Gallery Ring in box.
(e)2 x Bracelet with ‘H’ logo.
(f)Assorted jewellery in pink bag.
(g)Oppo Mobile Phone
(h)Tommy Hilfiger Watch.
(25)Police also located the following Drugs of Dependence (Charge 2 — Possession of a Drug of Dependence):
(a)5 x Vials containing 1.2 grams boldenone.
(b)5 x Xanax tablets (less than 10 grams of 1,4-benzodiazepines).
(c)6 x Vials containing 10.6 grams of Testosterone.
(d)1 x Ziplock bag containing 0.04 grams of Cocaine.
(26)Photographs of all in-situ exhibits were obtained by Senior Constable WILSON.
(27)A 2018 black Mercedes Sedan bearing registration ‘ATZ538’ was also seized by Police from the underground carpark of 14 David Street, Richmond and was towed to a secure vehicle storage facility.
Search of Vehicle ATZ538
(28)On the 28th of September 2022 at approximately 11:30 am, police attended the secure vehicle storage facility, where the 2018 black Mercedes Sedan bearing registration ‘ATZ538’ was located.
(29)Once access had been gained to the vehicle, Police conducted a search of vehicle ‘ATZ538’ and located and seized a number of items, including:
(a)Silver‐coloured Handgun and magazine (Charge 3 - Prohibited Person Possess a Firearm).
(b)Multiple rounds of mixed ammunition (50‐100) within grey case (Summary Charge 23 - Possessing cartridge ammunition without a licence).
(c)Wallet containing various ID and cards in name of accused.
…
Arrest and Record of Interview
(31)On 5 October 2022, at approximately 4:30 pm, Mr AL-BAB presented to the Preston Police Station where he was subsequently arrested by Senior Constable WRIGHT and Detective Sergeant PETSAS.
(32)Mr AL-BAB was later interviewed at Heidelberg Police Station by Senior Constables URBANIAK and WILSON, and subsequently remanded into custody. Mr AL-BAB stated the following during his record of interview:
(a)On 8 September 2022 he would have been at work.
(b)He would drive the black Mercedes (ATZ-538), which he had been renting for nearly three months, and that friends would drive it for a few hours. He only has one set of keys for the vehicle.
(c)He couldn’t recall what he was doing on the 9th of September 2022.
(d)He couldn’t recall what he was doing on the 20th of September 2022.
(e)He fled the property when police attended with the Search Warrant on 28 September 2022.
(f)He left as he thought we would get into trouble for breaching bail and for having prohibited items in his apartment.
(g)He possessed the Firearm located by police in the search. He stated that he keeps it on him for personal protection. He said that he got it from an associate and paid a big amount for it ($28,000).
(h)He was aware that he was a prohibited person.
(i)He possessed the ammunition and stated that he got it from the associate that sold him the firearm as a package deal.
(j)He purchased the Nike Fly Trap 5 basketball shoes found in his vehicle to play basketball in but has never worn them.
(k)He got the American currency from a family friend who returned from overseas.
(l)He denied knowing the 82 Mansfield Street address. He said no comment to the offending but admitted it was him on the CCTV at David Street Richmond on 9 September 2022.
(m)He said that he has many sets of tools when asked about the screwdriver located in his house. He had the screwdriver in the kitchen as the sliding door has been dodgy in the past and he has needed to jimmy it.
(n)He said the Indian currency was his and the jewellery was his ex-partner’s (Samantha).
(o)He said the car keys found are keys to friend’s vehicles but says [sic] no comment when asked for details.
Reasons for sentence
Remorse and early plea
The judge summarised the offending conduct. The judge noted the applicant’s plea of guilty and accepted that it reflected the applicant’s willingness to accept responsibility for his conduct and indicated ‘some remorse’.[7] It had a utilitarian value enhanced by its timing during the pandemic court backlog.[8]
Personal circumstances
[7]Reasons, [17].
[8]See Worboyes v The Queen (2021) 96 MVR 344 (‘Worboyes’).
The applicant, at the time of sentence was aged 27 years; he was born in Kuwait and came to Australia when he was four years old. He is an Australian citizen. His parents separated soon after. He suffered some violence at home inflicted by his father. He left school in Year 11 and started to use cocaine and cannabis in his late teens.
The judge noted that the applicant had a relevant criminal history and had been gaoled before on a number of occasions for burglary. The judge was prepared to overlook his Children’s Court criminal history and turned to his adult jurisdiction criminal history:
Your first case in the adult jurisdiction was of armed robbery and you were sentenced to two years and six months detention in a Youth Justice Centre in July 2017, aged 20. Since then, you were sentenced to six months in June 2019 for burglary, theft and assault related offences. Two years later in June 2021 you were imprisoned for nine months combined with a CCO for similar.
Prior to the offending in this case, you were released from prison on 5 November 2021. A month later on 9 December 2021 you were arrested again for further such offending and you served 90 days before being bailed on 8 March 2022. That 90 days was later declared as presentence detention in relation to the further nine-month sentence imposed on 16 October 23.[9]
[9]DPP v Al-Bab [2022] VCC 976, [24]–[25] (‘Reasons’).
His Honour then referred to the applicant’s progress whilst on remand. The applicant at the time of his plea had regularly attended and ‘co-facilitated’ a Narcotics Anonymous group since October 2022. The author of a related reference, Mr Virgato, stated that the applicant had an increased awareness of his ‘triggers and a willingness to change [his] behaviour’. The judge correctly noted that Mr Virgato’s statement was provided as a personal character reference and did not classify as an expert opinion.
Gravity of the offences
His Honour noted the maximum penalties for each charge. He observed that:
The gravity of what you did, I find, is moderately serious. In light of your history, you know that this kind of conduct results in gaol and yet you did it again. There is no suggestion of any valid reason for you to be in need of money that could possibly justify or explain stealing from others in this way. While I accept you did not go to the property intending to confront anyone, and that you only entered the home reckless as to someone being present, your offending was planned, you had a weapon in as much as the screwdriver was one, and you broke in. It was all in breach of court orders, namely a CCO and bail.
In favour of leniency, I accept that the weapon you held was not a dangerous one, you did not attend in company, it was not in the middle of the night, your offending against the victim had no other criminal context and you left immediately after being confronted. Those things make your offending less serious.
Your possession of the firearm and ammunition however is also serious offending. The handgun is a very dangerous weapon. I will not punish you for having it to hand or using it during the burglary, but that does not mean that this offence is by any means less serious or just benign. Weapons such as this are capable of inflicting serious injury, if not death. Possession of such a weapon by offenders such as yourself poses a real risk of serious harm to the community. I will sentence you in a way aimed at punishing you and deterring you from any further contact with ammunition and weapons of this kind.[10]
Prospects of rehabilitation
[10]Reasons, [31]–[33].
The judge considered the applicant’s prospect for rehabilitation as turning upon his capacity to defeat his ‘old drug habits’.[11] He noted the applicant was still relatively young, had demonstrated a capacity for work, had attended Narcotics Anonymous regularly and in doing so had demonstrated a degree of commitment to turn his life around. Nevertheless, the judge had his doubts:
Whether you are able to succeed in this is the real question. Your criminal history suggests that this has regularly been a struggle that is beyond your own resources to win.[12]
[11]Reasons, [34].
[12]Ibid.
With this in mind, the judge stated:
I intend to impose a sentence that provides you the degree of support and supervision proportional to that struggle. While I do not find that your prospects are without hope, I have given some weight to the need for community protection against your ongoing offending. On the whole, I find your prospects to be guarded to reasonable.[13]
[13]Reasons, [35].
The judge concluded that he had considered that:
(a)the charges in this case arose from a ‘single incident and/or being related to a significant degree in the short period that [the] offending covered’;[14] and
(b)that he took into account the loss of opportunity for concurrency with the 9-month sentence imposed by a magistrate on 16 October 2023; and
(c)he had considered sentences imposed in similar cases.
[14]Reasons, [36].
Ground 1
Ground 1 contends that the judge overvalued the objective gravity of the aggravated burglary charge (charge 1). The applicant alleges specific error in the judge’s reference to the applicant forcing entry to the victim’s house with intent to steal, and at the time of entering the house ‘ … had a weapon inasmuch as a screwdriver was one, and you broke in’.[15] The full context of paragraphs [12] to [13] of the Summary of Prosecutor’s Opening is set out in paragraph [4] of these reasons.
[15]Reasons, [31].
The applicant argues that he did not plead guilty to aggravated burglary on the basis that he was in possession of an offensive weapon. At the plea hearing, the screwdriver was never suggested to be anything more than a housebreaking implement.
In my view, when the full context of the sentencing reasons is considered, there is no arguable prospect that the judge sentenced the applicant for a more aggravated form of the offence or somehow double-punished him for conduct that occurred after charge 1 was complete. Paragraph [9] of these reasons sets out the full context of the sentencing reasons.
The applicant’s possession of the screwdriver formed part of the factual basis of the plea. It was the implement used to effect entry into the victim’s house. The Summary of Prosecution Opening on the Plea said as much.[16] That statement also set out that when the victim heard the noise of the door being forced, he located the applicant holding a long screwdriver, approximately 20–30 centimetres in length, above his shoulder in his right hand.
[16]See subparagraphs [12] and [13] quoted in paragraph [4] of these reasons.
Those factual allegations were agreed between the parties as relevant circumstances that informed the plea to the aggravated burglary (person present) offence.
Offensive weapon is defined in the Crimes Act 1958 as follows:
offensive weapon means any article (other than a firearm or an imitation firearm) made or adapted for use for causing injury to or incapacitating a person, or which at the time of an assault the person having it with them intends or threatens to use for such a purpose.[17]
[17]Crimes Act 1958, s 320A(4).
The applicant possessed a screwdriver. It was neither made nor adapted for use to cause injury. The judge specifically found that the applicant had no intention to confront anyone and that the ‘weapon was not a dangerous one’.[18] The suggestion that the judge had somehow strayed into s 77(1)(a) (offensive weapon) territory[19] or doubly punished the applicant for possessing an offensive weapon at the time of entry is misconceived. The judge was merely reciting a narrative that had its genesis in the agreed statement of facts. Perhaps, for the avoidance of confusion, it may have been prudent for his Honour to have referred to the screwdriver in terms, rather than as a weapon.
[18]Reasons, [32].
[19]The offence of aggravated burglary is established where a person commits a burglary: (i) while having an offensive weapon, firearm or explosive, pursuant to Crimes Act 1958, s 77(1)(a); or (ii) when a person is present and the offender knew or was reckless to that, pursuant to Crimes Act 1958, s 77(1)(b).
The applicant has failed to establish that it is arguable that the judge sentenced the applicant on a different or more aggravated form of the offence or somehow double punished him for aggravated burglary (person present)[20] and aggravated burglary (with offensive weapon).[21]
[20]Pursuant to Crimes Act 1958, s 77(1)(b).
[21]Pursuant to Crimes Act 1958, s 77(1)(a).
Ground 1 also alleges more generally that ‘the gravity of the offending was not otherwise moderately serious’[22] having regard to the circumstances. The applicant has failed to establish this allegation when consideration is given to the following:
(a)aggravated burglary is an inherently serious offence.[23] An absence of aggravating factors is not itself mitigating;[24]
(b)the offending was planned;
(c)the applicant drove to a distant suburb. He turned his phone off;
(d)he demonstrated a degree of skill in effecting the break and entry;
(e)the victim was home alone;
(f)the sound of entry caused a loud bang sufficient to cause the victim to investigate;
(g)the applicant confronted the victim in his house, carrying a screwdriver and wearing a baseball cap and sunglasses. This must have caused alarm.
(h)the applicant was on a community correction order and bail at the time of the offending conduct.
[22]Reasons, [32].
[23]Salvaggio v The Queen [2022] VSCA 88, [106] (Maxwell P, Kyrou and Niall JJA).
[24]Brown v The Queen [2021] VSCA 204, [28] (Maxwell P and Sifris JA).
There is no error in describing the offence as ‘moderately serious’. It was.
Leave to appeal is refused on ground 1.
Ground 2
Ground 2 contends that the sentenced imposed on charge 1, the total effective sentence and the non-parole period are manifestly excessive.
For the reasons set out in response to proposed ground 1, I repeat that I consider this to be a moderately serious offence. The sentence imposed was 12% of the maximum sentence available to his Honour. The sentencing reasons comprehensively articulate the factors in mitigation (or lack of aggravation) which include:
(a)the ‘weapon’ was not a dangerous weapon;
(b)the applicant acted alone;
(c)the offending was in daylight hours;
(d)the applicant pleaded guilty at an early stage, ‘somewhat tempered by it only being offered at the committal stage …’;[25]
(e)the plea reflected in the applicant a preparedness to take responsibility for his actions, it indicated some remorse and has a utilitarian value enhanced by its timing in being made during the pandemic;[26]
(f)the applicant has taken steps while in custody to address his drug addiction;
(g)the applicant had a dysfunctional early life;
(h)he has worked sporadically but attendance at work has been interrupted by his drug habit; and
(i)the lost opportunity for concurrency occasioned by the applicant being required to serve another sentence whilst on remand for these offences.
[25]Reasons, [16].
[26]Worboyes (2021) 96 MVR 344.
The judge noted the applicant’s relatively significant criminal history.[27]
[27]See paragraph [7] of these reasons.
There is nothing in the judge’s careful reasons or in the sentence imposed on charge 1 that suggests manifest excess.
Ground 2 is not reasonably arguable.
Conclusion
Leave to appeal is refused.
---
0
3
0