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Alam v The Queen

Alam v The Queen

Case [2015] VSCA 48 24 March 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0280

KH FAISAL ALAM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 March 2015
DATE OF JUDGMENT:	24 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 48
JUDGMENT APPEALED FROM:	DPP (Cth) v Alam (Unreported, County Court of Victoria, Judge Cannon, 13 November 2014)

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CRIMINAL LAW – Sentence – Appeal – Making a false Commonwealth document and Falsely representing that person is a Commonwealth official – Total effective sentence of two years’ imprisonment with minimum term of 10 months – Sentence manifestly excessive – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann	James Dowsley & Associates
For the Respondent	Ms K Breckweg	Director of Public Prosecutions (Cth)

THE COURT:

Introduction

On 23 October 2014, the applicant pleaded guilty in the County Court to making a false Commonwealth document[1] (charge 1) and falsely representing himself to be a Commonwealth official[2] (charge 2).
[1]Criminal Code (Cth), s 144.1(5). The maximum penalty is imprisonment for 10 years. By virtue of s 4B of the Crimes Act 1914 (Cth) a pecuniary penalty of $66,000 is also available.
[2]Criminal Code (Cth), s 148.1(3). The maximum penalty is imprisonment for 5 years. By virtue of s 4B of the Crimes Act 1914 (Cth) a pecuniary penalty of $33,000 is also available.

The applicant was sentenced on 13 November 2014 to be imprisoned for 12 months on charge 1 and for two (2) years on charge 2, producing a total effective sentence of two (2) years’ imprisonment. The judge also imposed a pecuniary penalty of $87,167.74. It was ordered that the applicant be released after serving ten months’ imprisonment, upon him giving security by a recognisance[3] in the sum of $2,000 to comply with conditions, first, that he be of good behaviour for a period of five years, and, secondly, that he pay the pecuniary penalty order in full by 30 June 2015.
[3]Crimes Act 1914 (Cth), s 19AC(1).

Leave to appeal against sentence was sought on the following ground:

The sentence imposed on the charge of Falsely representing to be a Commonwealth Official, the Total Effective Sentence and the period of imprisonment to be served before release on a Recognisance Release Order were manifestly excessive.

For the reasons that follow we would grant the application for leave to appeal, allow the appeal and resentence the applicant in the manner we will later set out.

Background

Each offence to which the applicant pleaded guilty related to his involvement in a fraudulent scheme in which the victims were duped into making applications for visas to the ‘Department of Immigration and Citizenship’. The victims believed that they were making genuine applications, but, in fact, they were tricked into paying money to fraudsters for visas that would not be forthcoming.

At interview, the applicant told police that he was introduced to the scheme by a man named Saifal Islam, who…

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 Alam v The Queen

Details

AGLC: Alam v The Queen [2015] VSCA 48
Case: [2015] VSCA 48
Decision Date: 24 March 2015

CaseChat Overview and Summary

The case of Alam v The Queen involved an appeal against the sentence imposed by the trial judge. The appellant, Mr. Alam, was found guilty of making a false Commonwealth document and falsely representing himself as a Commonwealth official. The trial judge sentenced him to a total effective term of two years’ imprisonment, with a minimum term of 10 months. The appellant challenged the severity of the sentence, arguing it was manifestly excessive. The appeal was heard by the court which was required to determine whether the sentence was proportionate and whether it was appropriate to reduce the sentence imposed by the trial judge.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court considered the principles of sentencing outlined in the relevant case law, particularly focusing on the need for proportionality and whether the sentence imposed reflected the seriousness of the offence. The court also examined the principles of totality and the need to avoid double counting when considering the cumulative effect of multiple offences for which the appellant was sentenced. The court was required to weigh these factors against the appellant’s personal circumstances and the objective of specific deterrence.

The court found that the total effective sentence of two years’ imprisonment, with a minimum term of 10 months, was manifestly excessive. The court noted that the offences were serious but did not warrant such a severe sentence, especially considering the appellant’s personal circumstances and the absence of aggravating factors. The court concluded that the trial judge had failed to adequately consider the principles of proportionality and the totality principle. Consequently, the appeal was allowed, and the case was remitted to the trial judge for re-sentencing. The court provided guidance on the appropriate range of sentence for the offences committed, indicating a more lenient approach was warranted.

The final orders of the court were to allow the appeal, set aside the original sentence, and remit the matter to the trial judge for re-sentencing, ensuring that the new sentence complied with the principles of sentencing and was proportionate to the seriousness of the offences. The court did not specify a particular sentence but provided clear directives on the considerations that should guide the re-sentencing process.

Orders