Ali Belhaj v The Queen
[2013] VSCA 67
•28 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0209
| ALI BELHAJ | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 March 2013 |
| DATE OF JUDGMENT | 28 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 67 |
| JUDGMENT APPEALED FROM | DPP v Stojanoski & Ors (Unreported, County Court of Victoria, Judge McInerney, 27 August 2012) |
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CRIMINAL LAW — Application for leave to appeal against sentence — Parity — Applicant convicted of one charge of affray and one charge of causing injury intentionally — Total effective sentence of two years and six months’ imprisonment with non-parole period of one year and six months — Applicant, together with two co-offenders, attacked victim with baseball bat — Crown unable to establish which offender used that weapon during attack — Lesser term of imprisonment imposed on one co-offender on intentionally causing injury charge — Other co-offender sentenced to five year community correction order — Whether open to sentencing judge to so distinguish between co-offenders where no difference between roles played during offending — Valid distinctions to be drawn between co-offenders’ culpability — Application refused — No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Pearson | Robert Stary & Associates |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
I agree with Coghlan JA.
COGHLAN JA:
The applicant Ali Belhaj makes application for leave to appeal against the sentence imposed on him in the County Court on 27 August 2012. He had pleaded guilty on 21 June 2012. He was sentenced as follows:
Count Offence Maximum Sentence Cumulation 1 Affray [Common Law] 5 years 1 year - 2 Causing Injury Intentionally [ s 18 of Crimes Act 1958] 10 years 2 years and 6 months Base Total Effective Sentence: 2 years and 6 months Non-Parole Period: 1 year 6 months Pre-sentence Detention: 39 days 6AAA Statement: 3 years and 4 months with a non-parole period of 2 years and 6 months
The sole ground of appeal is that the sentences imposed upon the applicant offend against the sentencing principle of parity when compared to the sentences imposed on the co-offenders, Mohammed Belhaj and George Stojanoski.
The applicant’s co-accused were sentenced as follows:
Count Offence Stojanoski M. Belhaj 1 Affray [Common Law] 12 months (to be served concurrently with Count 2) Community Correction Order for five years with conditions to perform 200 hours unpaid community work and pay a fine of $1000. 2 Causing Injury Intentionally [ s 18 of Crimes Act 1958] 2 years Non-Parole Period: A new non-parole period was fixed for Stojanoski being 30 months from the date of sentence on Indictment No B10225157.1 on 21 May 2012.
The facts of the matter may be stated briefly. At about 10.00am on 28 March 2010, the applicant became involved in a fight with Mark Beall in Lennox St, Richmond. The applicant attempted to punch Beall who retaliated by punching the
applicant to the face and loosening two of his front teeth. Beall left but returned and spoke to the applicant.
At some time later, Beall went to the corner of Victoria Parade and Hoddle Street Collingwood to wash car windscreens.
At about 1.00pm, Mohammed Belhaj and George Stojanoski arrived at the intersection in a car which Mohammed Belhaj had borrowed earlier that day. It appears that the applicant was already in the vicinity.
The co-accused had come to the scene after being contacted by the applicant.[1]
[1]T16-17
Beall was attacked by the three men in the middle of three right hand turning lanes. He was hit to the head from behind with a baseball bat and fell to the ground where he continued to be attacked with the baseball bat and struck by both foot and fist.
The prosecution was unable to say who actually used the bat. Two baseball bats, one full size and one smaller, were recovered from the car which was driven by the applicant’s brother Mohammed.
In the summary of prosecution opening the following paragraph appears:[2]
Witnesses described the attack as being sickening, disgusting, disturbing and a fearful experience. At some stage, witnesses indicated to the accused men that they had called the police.
[2][10]
Beall suffered a right temporal bone fracture, right orbital fracture and sphenoid fracture at the base of the skull. These injuries did not require surgical intervention but the dislodgement of his glass eye prosthesis from his eye socket did. He appears to have made a satisfactory recovery.
The co-accused Mohammed Belhaj is now 27 and had prior convictions in 2003 and 2004 for assault by kicking and recklessly causing injury respectively. In relation to the latter matter he was released on a community based order which he did not complete and was brought back to court in 2006 and fined. Since these matters occurred, he has served either seven or eight months’ imprisonment for burglary but has not committed further offences.
On sentence, the learned sentencing judge made it clear that he was distinguishing between the three accused. His Honour said,[3]
Insofar as the criminality in this matter, the Crown submitted, given the plea and the lack of indication from all parties as to who was particularly involved in the assault with the baseball bat, that I should take the view that there were no differences in regard to the criminality itself based essentially on the basis that the pleas were of joint liability for this offending. It is clear however as I say in regard to all of you, that none of you have prior offences of this dimension, or did not have prior offences of this dimension at the time of this offence.
I find however there is appropriate reason for discrimination of sentence. Mr Ali Belhaj is considerably older, he is far more experienced, he has had significant prior offences as I have indicated and has served two periods of incarceration. The offences in this matter came about by way of revenge in regard to his association with the victim and certainly insofar as his brother is concerned, he has had two significant periods of gaol whereas his brother to this stage has not received gaol. Both his brother and Mr Stojanoski unfortunately stupidly decided to assist in this revenge. They are both of a lesser age and much less experienced than Mr Ali Belhaj and I find there is an appropriate basis for discrimination of the sentences between the prisoners despite their joint liability.
I stress as to Mr Ali Belhaj that you do not, just because you have prior offences and have been to gaol, become liable for further sentence on such matters – such would be wholly wrong. However, such background in your case limits the flexibility as to sentencing.
[3]DPP v Stojanoski & Ors (Unreported, County Count of Victoria, Judge McInerney, 27 August 2012), [60] – [62]
The applicant is now 37 years of age. He has 77 prior convictions from 15 court appearances between 1993 and 2005. He has been sentenced to imprisonment on a number of occasions, including a sentence of four years with a non-parole period of two years in 2005 for burglary offences. He has breached community based orders and suspended sentences. His offending is almost entirely drug related leading to a number of convictions for dishonesty. He has only one conviction for violent behaviour, that being assault by kicking in 2003.
The co-accused Stojanoski is now 25. Although he has no prior convictions for violence, he is undergoing a sentence imposed in the County Court on 21 May 2012.
It was submitted on behalf of the applicant that the distinctions made by his Honour were either not really open, or in error, and the parity principle was therefore not infringed. Each feature of discrimination was challenged in turn. First on the basis of age and experience. The applicant is 11 years older than his brother and 14 years older than Stojanoski. At least in so far as Stojanoski is concerned, he was just 22 at the time of the offending and was entitled to be treated as a young offender for the purposes of sentencing. Young offender is not to be confined to the definition of that term in the Sentencing Act 1991 (‘the Act’) which is included for other purposes. Mohammed Belhaj was 25 at the time of the offending and relatively young.
The life experience of the applicant was clearly more extensive. He had served a number of terms of imprisonment (rather than just the two referred to by his Honour), whereas neither of the co-accused had served a term of imprisonment at the time of these offences.
At the time of the offending, Mohammed Belhaj had two prior convictions for offences involving violence, one of which was identical to that of the applicant, namely assault by kicking. Those offences occurred in 2003 and 2004 when Mohammed was 19 or 20. Although he had a number of prior convictions for dishonesty, he had never been imprisoned.
The co-accused Stojanoski had been sentenced on 21 May 2012 to be imprisoned for a total of 3 years with a non-parole period of 20 months. That offending involved an aggravated burglary, threat to kill, indecent assault, recklessly causing serious injury and the summary offence of breaching an intervention order issued under the Family Violence Protection Act 2008.
The offending occurred on 27 January 2011, almost a year after this offending. It related to an ongoing dispute with his girlfriend of some years. It was very serious and I do not intend to suggest otherwise but for present purposes, although violent, it was of a different character. His Honour did have to deal with that offending and have regard to totality, but in relation to the point he was making about difference in background, experience and prior convictions, Stojanoski had had less involvement with the criminal justice system.
The other issue pressed on the application is that there was no reason to distinguish between the roles played by each of the accused. That is true in so far as the actual offending is concerned. All of the accused accepted responsibility for what occurred. The prosecution was unable to establish which accused used the baseball bat.
His Honour did make it clear that he was making a distinction between the accused based upon how the events of the day unfolded. His Honour took the view that the applicant was motivated by revenge. That finding is challenged. On the plea it was said on behalf of the applicant:[4]
He then makes this impulsive decision in the face of that provocative conduct by Mr Beall to contact his brother.
…
That's right. Yes. He regrets, Your Honour, and he tells me all this by way of instructions, he regrets very much that he effectively got his brother involved in the event. He says, by way of instructions - - -
…
MR PEARSON: The accused man Stojanoski, Ali Belhaj says that he didn't even know that Stojanoski was going to be there. He appears to have just come along with - - -
HIS HONOUR: I think he was just, as I understand it, just with his brother, wasn't he? In the car?
[4]T16-17
It was conceded on the plea that the applicant was the initiator of the attack on Beall. His Honour was entitled, on that basis alone, to distinguish between the men in the way that he did. It is entirely artificial, and wrong, to say that just because the prosecution is unable to distinguish what actual roles were played in the attack, no distinction is to be drawn between each offender’s culpability.
In fact, the learned trial judge made a very minor distinction relating to Stojanoski. The major difference between the sentences is to be found between the applicant and his brother Mohammed.
When the material is examined the distinction is a reasonable one.
It is implicit in his Honour’s sentencing remarks that he regarded the prospects of rehabilitation of Mohammed Belhaj, who on the material before his Honour appeared to be drug free at the time of sentence, as being significantly greater than those of the applicant. It is worth noting the assessment by Ms Izabela Walters, a neuropsychologist, that the applicant’s rehabilitation was handicapped by his ongoing drug use. The applicant could not have been described as anything like drug free at the time of sentence.
The only sentencing consideration present in the applicant’s case and not in those of the co-accused was that his Honour found that imprisonment would be more onerous for him because of his underlying psychological difficulties. It followed that the principles set out in R v Verdins[5] would apply.
[5](2007) 16 VR 269.
In my view, there was nothing in that consideration that would lead to the applicant receiving a lesser sentence than the co-accused. Given the relatively small differential in sentence between the applicant and Stojanoski, his Honour must have given the matter weight in coming to the sentence which he imposed.
On analysis of all of the material, the fully concurrent sentence on the count of affray was generous. It is not a concession I would have made had the applicant fallen to be resentenced.
His Honour’s reasons for distinguishing the conduct of the applicant from that of his co-offenders were open and he made no error in the application of the principles of parity.
I would refuse leave to appeal.
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