Al Wahame v The Queen - [2018] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0094

MOHAMMAD AL WAHAME	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 January 2018
DATE OF JUDGMENT:	1 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 4
JUDGMENT APPEALED FROM:	[2016] VCC 1309 (Judge Pilgrim)

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CRIMINAL LAW – Application for leave to appeal sentence – Recklessly causing serious injury – Sentence of 6 years’ imprisonment – Non-parole period of 4 years and 6 months – Fresh evidence – Applicant permitted to rely on fresh evidence of intellectual disability – Countervailing considerations raised by fresh evidence – Application for leave to appeal granted – Appeal dismissed as no different sentence should be imposed – Muldrock v The Queen (2011) 244 CLR 120, R v Verdins (2007) 16 VR 269 and Veen v The Queen [No 2] (1988) 164 CLR 465 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Willee	Tait Lawyers
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
KYROU JA:

Summary

On 25 August 2016, the applicant pleaded guilty in the County Court at Melbourne to a charge of recklessly causing serious injury (charge 1) and two summary charges of failing to answer bail (summary charges 3 and 4). He was sentenced on 2 September 2016 as follows:[1]
[1]DPP v Al Wahame [2016] VCC 1309 (‘Reasons’).

Charge on Indictment Offence Maximum Sentence Cumulation

1
Recklessly causing serious injury

Crimes Act 1958 s 17
15 years’ imprisonment 6 years Base

Summary Charge 3
Fail to answer bail

Bail Act 1977 s 30(1)
12 months’ imprisonment 7 days Nil

Summary Charge 4
Fail to answer bail

Bail Act 1977 s 30(1)
12 months’ imprisonment 7 days Nil

Total Effective Sentence: 6 years’ imprisonment

Non-Parole Period: 4 years and 6 months

Pre-sentence Detention Declared: 211 days

6AAA Statement 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months

The applicant now seeks leave to appeal his sentence.

Proposed grounds of appeal

The applicant has proposed the following grounds of appeal:

1. The Applicant should be resentenced by this Court in light of fresh evidence that he suffers from an intellectual impairment that was present but not fully understood or diagnosed at the time of sentence. The Applicant’s intellectual impairment enlivens the principles considered in R v Verdins and thus necessitates a reduction in sentence.
2. The individual sentence on Charge 1, along with the non-parole period imposed on the Applicant, are each manifestly excessive. In particular, having regard to:
a)   The objective seriousness of the offending and current sentencing practices for comparable offending;
b)   The insufficient weight attributed to the primacy of rehabilitation in light of his youth; and
c)   General factors in mitigation including the Applicant’s disadvantaged background, intellectual deficit and plea of guilty.

In the course of the hearing before us the applicant was granted leave to rely upon the fresh evidence referred to…

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: [2018] VSCA 4
Decision Date: 1 February 2018

CaseChat Overview and Summary

Al Wahame has applied for leave to appeal against his sentence for recklessly causing serious injury. The applicant was sentenced to six years' imprisonment with a non-parole period of four years and six months. The central issue before the court was whether the applicant could rely on fresh evidence of his intellectual disability and, if so, whether it warranted an appeal against his sentence.

The court considered the principles set out in Muldrock v The Queen, R v Verdins and Veen v The Queen, which require a balance between the countervailing considerations raised by the fresh evidence and the original sentence. In this instance, the court found that the applicant could rely on the fresh evidence of his intellectual disability and that this warranted an appeal against his sentence. However, the court also found that the sentence imposed was appropriate given the circumstances of the case and that no different sentence should be imposed.

Accordingly, the court granted the applicant leave to appeal but dismissed the appeal as no different sentence should be imposed. The court's decision highlights the importance of considering fresh evidence in sentencing decisions and the need for a balanced approach when weighing countervailing considerations. Ultimately, the court found that the sentence imposed was appropriate and that no different sentence should be imposed.

Orders