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…
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- Case
- [2018] VSCA 4
- Decision Date
CaseChat Overview and Summary
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.
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