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Al Qassim v The King

Al Qassim v The King

Case [2024] VSCA 302 10 December 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPC 2024 0044

HUSSAIN AL QASSIM	Appellant
v
THE KING	Respondent

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JUDGES:	T FORREST and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2024
DATE OF JUDGMENT:	10 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 302
JUDGMENT APPEALED FROM:	DPP v Alqassim [2023] VCC 2157 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Multiple offences including aggravated burglary, theft, home invasion, false imprisonment and handling stolen goods – Total effective sentence of 10 years and 1 month imprisonment – Non-parole period of 5 years and 6 months – Cumulation of individual sentences – Whether cumulation was manifestly excessive – Whether sentencing judge failed to give sufficient weight to the totality principle – Total effective sentence was within range reasonably open to sentencing judge – Outrageous criminality – Offending was objectively grave and repeated – Significant cumulation was appropriate – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Whether total effective sentence was manifestly excessive – Offending was objectively grave and repeated – Total effective sentence was within range reasonably open to sentencing judge – Sentencing principles were given appropriate weight – Appeal dismissed.

Azzopardi v The Queen (2011) 35 VR 43; Clarkson v The Queen (2011) 32 VR 361; Rohen v The King [2024] VSCA 1, applied; Cay v The Queen (2010) 29 VR 560; Nguyen v The Queen (2016) 256 CLR 626, considered.

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Counsel
Appellant:		Mr OP Holdenson KC
Respondent:		Mr JCJ McWilliams
Solicitors
Appellant:	Slaveski & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
KENNY JA:

Introduction

On 30 October 2023, the appellant pleaded guilty in the County Court of Victoria to two charges of aggravated burglary, two charges of theft, two charges of possessing a drug of dependence, one charge of false imprisonment, one charge of handling stolen goods, and four related summary offences.
On 20 November 2023, the appellant was sentenced to a total effective sentence of 10 years and 1 month imprisonment, as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[1]	25 years’ imprisonment	5 years and 6 months’ imprisonment	Base
2	False imprisonment[2]	10 years’ imprisonment	2 years’ imprisonment	3 months
3	Theft[3]	10 years’ imprisonment	3 years’ imprisonment	6 months
4	Aggravated burglary	25 years’ imprisonment	5 years’ imprisonment	2 years
5	Theft	10 years’ imprisonment	4 years’ imprisonment	12 months
6	Handling stolen goods[4]	15 years’ imprisonment	12 months’ imprisonment	2 months
7	Possession a drug of dependence[5]	12 months’ imprisonment	Fine of $250	N/A
8	Possession of a drug of dependence	12 months’ imprisonment	Fine of $250	N/A
Related Summary Offences
14	Commit an indictable offence whilst on bail[6]	30 penalty units or up to 3 months’ imprisonment	2 months’ imprisonment	1 month
37	Unlicensed driving[7]	60 penalty units or up to 6 months’ imprisonment	Fine of $500	N/A
38	Possession of a prohibited weapon[8]	240 penalty units or up to 2 months’…

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 Qassim v The King

Details

AGLC: Al Qassim v The King [2024] VSCA 302
Case: [2024] VSCA 302
Decision Date: 10 December 2024

CaseChat Overview and Summary

In the case of Al Qassim v The King, the appellant, Mr Al Qassim, appealed against the sentence imposed by the Supreme Court of Victoria. The sentence related to multiple offences including aggravated burglary, theft, home invasion, false imprisonment, and handling stolen goods. The total effective sentence imposed was 10 years and 1 month imprisonment, with a non-parole period of 5 years and 6 months. The primary issue before the court was whether the cumulation of the individual sentences was manifestly excessive and whether the sentencing judge failed to give sufficient weight to the totality principle.

The court considered the nature and gravity of the offences committed, which were objectively grave and repeated. The court found that the total effective sentence imposed was within the range reasonably open to the sentencing judge and that the sentencing principles were given appropriate weight. The court held that the offending was of an outrageous nature and that significant cumulation was appropriate given the circumstances. The court was satisfied that the sentencing judge had considered the totality principle and that the sentence imposed was not manifestly excessive.

As a result, the appeal was dismissed. The court found that the total effective sentence was within the range reasonably open to the sentencing judge and that the sentencing principles were given appropriate weight. The court held that the offending was of an outrageous nature and that significant cumulation was appropriate given the circumstances. The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders