DPP v Allouch (Unreported, County Court of Victoria, Judge Smith, 8 May 2018)
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CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to an aggregate term of 12 months’ imprisonment, with a non-parole period of six months, on nine theft and fraud related charges – Engaged in ‘ghost terminalling’ operation (a form of identity theft) – New evidence first emerged during hearing of application – Concession by Crown that evidence admissible – Applicant permanent resident but not Australian citizen – 12 month sentence gave rise to automatic cancellation of visa under s 501(3A) Migration Act 1958 (Cth) – Sentencing discretion re-opened – Application for leave granted and appeal allowed – Aggregate sentence of seven months’ imprisonment imposed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J P Fitzgerald with Ms A Brennan
Victoria Legal Aid
For the Crown
Mr B Sonnet
Mr J Cain, Solicitor for Public Prosecutions
BEACH WEINBERG JJA:
On 15 February 2018, the applicant pleaded guilty in the County Court at Melbourne, to nine charges relating to a series of fraudulent credit card transactions. The charges included obtaining property by deception, attempting to obtain property by deception and possessing identification information to facilitate the commission of an indictable offence.
On 8 May 2018, the judge imposed an aggregate sentence of one year, with a non-parole period of six months. The applicant now seeks leave to appeal against sentence, pursuant to s 278 of the Criminal Procedure Act 2009.
The charges against the applicant, and the sentence imposed, are summarised in the following table:
Charge
Offence
Maximum Penalty
Sentence
1.
Possess identification information to commit an indictable offence (Crimes Act 1958 s 192C)
3 years
12 months’ imprisonment aggregate sentence
2.
Possess identification information to commit an indictable offence (Crimes Act 1958 s 192C)
3 years
3.
Obtain property by deception (Crimes Act 1958 s 81) – course of conduct offence
10 years
4.
Attempt to obtain property by deception (Crimes Act 1958 s 321M) – course of conduct offence
5 years
5.
Obtain property by deception (Crimes Act 1958 s 81)
10 years
6.
Attempt to obtain property by deception (Crimes Act 1958 s 321M)
5 years
7.
Attempt to obtain property by deception (Crimes Act 1958 s 321M) – course of conduct offence
5 years
8.
Obtain property by deception (Crimes Act 1958 s 81) – course of conduct offence
10 years
9.
Attempt to obtain property by deception (Crimes Act 1958 s 321M) – course of conduct offence
5 years
Total effective sentence:
12 months
Non-Parole Period:
6 months
Pre-sentence detention
42 days
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
AGLC
Mohamed Allouch v The Queen [2018] VSCA 244
Case
[2018] VSCA 244
Decision Date
CaseChat Overview and Summary
The appellant in this case was convicted on nine counts of theft and fraud and was sentenced to an aggregate term of 12 months’ imprisonment, with a non-parole period of six months. The appellant engaged in what is known as a ‘ghost terminalling’ operation, a form of identity theft. The High Court of Australia heard the appellant’s appeal against the sentence. The appellant, a permanent resident but not an Australian citizen, was sentenced to 12 months imprisonment, which led to the automatic cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth). This triggered a re-opening of the sentencing discretion. The appellant applied for leave to appeal, which was granted, and the appeal was subsequently allowed.
The primary legal issue before the court was whether the original sentence of 12 months’ imprisonment was appropriate in the circumstances, particularly in light of the appellant’s visa status and the potential consequences of the sentence. The court needed to determine whether the original sentence was manifestly inadequate or excessive, and if the appellant’s non-citizen status should influence the re-assessment of the sentence. The court also needed to consider the nature and circumstances of the offence, the appellant’s personal history, and any other relevant factors.
The court concluded that the original sentence was manifestly inadequate and that the appellant’s non-citizen status and the potential consequences of the sentence were significant factors to consider. The court found that a lesser sentence would be appropriate, taking into account the appellant's cooperation and remorse, as well as the new evidence presented during the appeal. The court imposed an aggregate sentence of seven months’ imprisonment, with a non-parole period of three and a half months. This decision recognised the need for a sentence that balanced the seriousness of the crime with the personal circumstances of the appellant.