Alessawi and Snowball v The King - [2025] VSCA 23

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0199
MURTADA ALESSAWI	Applicant
v
THE KING	Respondent

S EAPCR 2024 0015
JAIDYN SNOWBALL	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, TAYLOR JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2024
DATE OF JUDGMENT:	3 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 23
JUDGMENT APPEALED FROM:	DPP v Alessawi & Anor [2023] VCC 1835 (Judge Gwynn)

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CRIMINAL LAW – Appeal – Conviction – Applicant Alessawi pleaded guilty to attempt to pervert the course of justice – Applicant demanded another person accept false nomination as driver at time of driving offence – Applicant prepared false nomination statement for driving offence – Applicant did not submit false nomination – Whether any completed act had requisite tendency to pervert the course of justice – Leave to appeal against conviction refused.

Riley v DPP [2015] VSCA 259, referred to.

Meissner v The Queen (1995) 184 CLR 132; Healy v The Queen (1995) 15 WAR 104; R v Allan [1995] 2 VR 468; Tognolini v The Queen [2011] VSCA 113; The Queen v Aydin (2005) 11 VR 544, considered.

CRIMINAL LAW – Appeal – Sentence – Applicant Alessawi pleaded guilty to discharging firearm at premises with reckless disregard for safety and other firearm offences – Applicant pleaded guilty to home invasion and other offences arising from separate occasion – Whether sentence is manifestly excessive – Shooting offending extremely serious – Offending highly planned and involved high calibre weapons –– Risk to public safety enormous – Importance of general deterrence – Assessment of moral culpability given youth – Leave to appeal against sentence refused.

Haddara v The King [2024] VSCA 269, considered.

CRIMINAL LAW – Appeal – Sentence – Applicant Snowball pleaded guilty to home invasion, criminal damage, theft and firearm offences – Whether evidence of neurocognitive disorder is fresh or new – Whether fresh or new evidence demonstrates true significance of facts existing at time of sentence – New evidence does not engage Verdins principles – Leave to appeal against sentence refused.

Nicholson v The Queen [2018] VSCA 146; Packard v The Queen [2022] VSCA 128; Betts v The Queen (2016) 258 CLR 420; R v Nguyen [2006] VSCA 184; DPP v O’Neill [2015] VSCA 325; R v Verdins (2007) 16 VR 269, referred to.

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Counsel
For the Applicant Alessawi: For the Applicant Snowball:	Mr S Tovey with Ms C Jackson Mr D Mence
Respondent:	Mr J O’Connor
Solicitors
For the Applicants:	Markotich Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
TAYLOR JA
KIDD AJA:

Introduction

On 8 June 2023 the applicant Alessawi (‘Alessawi’) and the applicant Snowball (‘Snowball’) pleaded guilty in the County Court to numerous charges on two indictments. Each indictment related to joint offending on a separate occasion.
(a)Indictment C2215455.1 preferred charges of home invasion and criminal damage against both applicants (‘home invasion offending’). It also preferred…

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: [2025] VSCA 23
Decision Date: 3 March 2025

CaseChat Overview and Summary

Alessawi and Snowball appealed against their convictions and sentences in the Court of Appeal of Victoria. Alessawi contested the conviction for attempting to pervert the course of justice and the sentence for discharging a firearm with reckless disregard for safety, among other offences. Snowball appealed against his sentence for home invasion, criminal damage, theft, and firearm offences. The court considered whether Alessawi's actions constituted an attempt to pervert the course of justice and whether his sentence was manifestly excessive, while Snowball's appeal focused on the relevance of new evidence regarding a neurocognitive disorder and its impact on his sentence.

The court examined whether Alessawi's demand that another person accept false nomination for a driving offence, and his preparation of a false nomination statement, constituted a completed act with the requisite tendency to pervert the course of justice. It also assessed whether Alessawi's sentence, considering the seriousness of his offences, the risk to public safety, and his youth, was manifestly excessive. Additionally, the court considered whether the new evidence of Snowball's neurocognitive disorder was fresh or new and if it demonstrated the true significance of the facts existing at the time of sentencing.

The Court of Appeal found that Alessawi's actions did not constitute an attempt to pervert the course of justice as they did not reach the threshold of a completed act with the requisite tendency. It held that the sentence was not manifestly excessive, given the seriousness of the offending and the importance of general deterrence. The court also determined that Snowball's new evidence did not engage the principles set out in Verdins and, therefore, did not warrant a sentence appeal. Consequently, leave to appeal against both convictions and sentences was refused.

The court upheld the convictions and sentences for both Alessawi and Snowball, rejecting the arguments presented in their appeals. The decision reaffirmed the criteria for attempting to pervert the course of justice and the factors to be considered in assessing the severity of sentences, particularly in cases involving serious and highly planned offending. The court's ruling underscored the importance of general deterrence in sentencing and the limited scope for appeals based on fresh or new evidence that does not meet the Verdins criteria.

Orders