Almatrah v The King
[2024] VSCA 301
•10 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0129 |
| BILAL ALMATRAH | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | T FORREST and KENNY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 November 2024 |
| DATE OF JUDGMENT: | 10 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 301 |
| JUDGMENT APPEALED FROM: | DPP v Almatrah [2024] VCC 794 (Judge Wilmoth) |
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CRIMINAL LAW – Appeal – Sentence – Multiple offences including common law assault, false imprisonment and robbery – Total effective sentence 12 months’ imprisonment and 2-year CCO – Applicant’s co-accused received 3-year CCO and no imprisonment – Whether applicant’s sentence infringed parity principle – Objectively similar gravity for all co-offenders – Applicant had extensive prior criminal history with similar offending – Co-accused had unblemished criminal record – Applicant’s sentence not unjustifiably disparate to co-offenders’ sentence – Leave to appeal refused.
Crimes Act 1958, s 63A; Criminal Procedure Act 2009, pt 5.6; Sentencing Act 1991, s 5(2H).
Clarkson v The Queen (2011) 32 VR 361; Grey v The King [2024] VSCA 75; Hafner v The Queen [2012] VSCA 190; Karam v The King [2024] VSCA 164; Postiglione v The Queen (1997) 189 CLR 295; Rohen v The King [2024] VSCA 1, considered.
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| Counsel | |||
| Applicant: | Mr DA Dann KC | ||
| Respondent: | Mr JCJ McWilliams with Mr C Michell | ||
Solicitors | |||
| Applicant: | Theo Magazis & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
T FORREST JA
KENNY JA:
Background
On 8 April 2022, two adolescents, ‘MR’ (aged 16 years) and ‘MS’ (aged 17 years) sold Omar Khodr a counterfeit Apple Watch for $450. As a consequence, on 9 April 2022, Mr Khodr, the applicant and Adem Ates searched for and found MR and MS walking down a street in Craigieburn. They assaulted the teenagers, falsely imprisoned them and robbed MR of his mobile phone and $1200.
The three co-offenders pleaded guilty before her Honour. On 30 May 2024, Mr Khodr and Mr Ates were sentenced to total effective sentences of a 3-year community correction order (‘CCO’) and were required to perform 200 hours of community work as a condition of those orders.[1]
[1]Among other conditions.
By contrast, the applicant was sentenced to a total effective sentence of 12 months’ imprisonment together with a 2-year CCO with an unpaid community work component as one of the conditions of that order.
This sentencing disparity is the subject of this application for leave to appeal. The proposed ground is expressed as follows:
The sentencing Judge erred in the application of the parity principle by imposing a sentence on the charges that was too greatly disparate from the sentences imposed on the co-offenders.
We set out below the full details of all sentences imposed on the co-offenders.
The applicant’s sentence
Charge
Offence
Maximum
Sentence
Cumulation
1 Common Law Assault[2] 5 years’ imprisonment 12 months & 2-year CCO Base 2 Common Law Assault 5 years’ imprisonment 12 months & 2-year CCO Concurrent 3 False Imprisonment[3] 10 years’ imprisonment 12 months & 2-year CCO Concurrent 4 False Imprisonment 10 years’ imprisonment 12 months & 2-year CCO Concurrent 5 Robbery[4] 15 years’ imprisonment 12 months & 2-year CCO Concurrent Summary Charge 7 Failure to comply with a direction without reasonable excuse[5] 2 years’ imprisonment 3 months & 2-year CCO Concurrent Total effective sentence 12 months’ imprisonment in combination with a 2- year CCO with 200 hours community work. Non-parole period Nil Pre-sentence detention Nil [2]Contrary to common law.
[3]Ibid.
[4]Contrary to s 75 of the Crimes Act 1958.
[5]Contrary to s 465AAA of the Crimes Act 1958.
Adam Ate’s sentence:
Charge
Offence
Maximum
Sentence
Cumulation
1 Common Law Assault 5 years’ imprisonment Aggregate 3-year CCO Base 2 Common Law Assault 5 years’ imprisonment Aggregate 3-year CCO Concurrent 3 False Imprisonment 10 years’ imprisonment Aggregate 3-year CCO Concurrent 4 False Imprisonment 10 years’ imprisonment Aggregate 3-year CCO Concurrent 5 Robbery 15 years’ imprisonment Aggregate 3-year CCO Concurrent Summary Charge 6 Possession of a Prohibited Weapon[6] 2 years’ imprisonment Aggregate 3-year CCO Concurrent Total effective sentence 3-year CCO with 200 hours community work. Non-parole period N/A Pre-sentence detention Nil [6]Contrary to s 5AA of the Control of Weapons Act 1990.
Omar Khodr’s sentence:
Charge
Offence
Maximum
Sentence
Cumulation
1 Common Law Assault 5 years’ imprisonment Aggregate 3-year CCO Base 2 Common Law Assault 5 years’ imprisonment Aggregate 3-year CCO Concurrent 3 False Imprisonment 10 years’ imprisonment Aggregate 3-year CCO Concurrent 4 False Imprisonment 10 years’ imprisonment Aggregate 3-year CCO Concurrent 5 Robbery 15 years’ imprisonment Aggregate 3-year CCO Concurrent Total effective sentence 3-year CCO with 200 hours community work. Non-parole period N/A Pre-sentence detention Nil
Factual summary
Her Honour set out a comprehensive summary of the offending in the reasons for her sentence.[7] We accept that summary which reads as follows:
[7]DPP v Almatrah [2024] VCC 794 (‘Reasons’).
On Saturday afternoon, 9 April 2022, two teenagers, [MR] aged 16 and [MS], aged 17, were assaulted and falsely imprisoned by the three accused. Almatrah and Khodr robbed [MR] of $1,200 and his mobile phone. Ates is also charged with robbery of that cash.
The teenagers had met Khodr the day before, 8 April, and sold him a counterfeit Apple watch for $450. Later that day, Ates and Khodr exchanged text messages indicating their intention to catch the culprits. A further text message between Ates and an unknown person referred to the address at Penhall Drive, Craigieburn which is the location of the incident giving rise to the charges.
On 9 April, the teenagers were walking along Penhall Drive, Craigieburn when [MR] saw a white Mercedes Benz sedan, registered BOK 173 parked in the street. The three offenders got out of the car and approached the teenagers. They then ran towards them, and the teenagers started running away. [MS] was tackled into a bush by Ates and [MR] was cornered by Almatrah and Khodr. Khodr grabbed him by the collar of his jacket. Almatrah punched [MR] in the stomach and then Khodr punched him. That is Charge 1.
Khodr dragged [MR] by his jacket towards [MS]. Almatrah ran to [MS] who was being punched by Ates. That is part of Charge 2, common assault of [MS]. Both men asked [MS] repeatedly, ‘Where’s the money’ referring to the sale of the i-watch the previous day.
Khodr and Almatrah grabbed [MR] by his top and put him on the ground. Khodr punched him on the right cheek and one man punched his left temple. [MR] tried to defend himself, holding his arms in front of his face as one offender punched and kicked him, while another kicked him in the stomach.
A witness, Mr Moshi, saw the assault through the window of his house and filmed part of the incident on his phone. Meanwhile, Ates was punching [MS] and Almatrah was stomping on him. This is part of Charge 2, the common assault of [MS]. As I said earlier, these assault charges are put on a complicity basis by the three accused.
Khodr grabbed [MR] by the collar and stated: ‘I want my money back.’ [MR] offered to make a transfer of funds to which Khodr replied, ‘Not transfer, just cash.’ He then walked [MR] towards the Mercedes and forced him into the back seat. [MR] complied, believing he had no other option because there were three offenders. Meanwhile, Almatrah pushed [MS] into the back of the car and got into the front passenger seat. Khodr got into the back. The teenagers were told they were going to get a beating and Almatrah said: ‘You guys scammed my little brother.’
The Mercedes sped off driven by Ates. Moshi heard a voice yell, ‘Let me out’ as the car pulled away. Moshi then called Triple 0.
In the car, Khodr grabbed an i-Phone 13 from [MR] and gave it to Almatrah who unlocked it using [MR]’s face ID. After some time, driving, Almatrah found [MR]’s address and his father’s phone number in the phone. He called [MR]’s father and demanded he: ‘Bring cash outside.’
[MR]’s father does not speak English well and Almatrah hung up. He kept turning around from the front passenger seat, punching [MS]. He told [MR] that they were going to his house to get $1,500. The forcing of the teenagers into the car gives rise to Charge 3 and 4, false imprisonment of [MR] and [MS], again on a complicity basis.
They parked near [MR]’s home and Almatrah got him to show him how to enter his, Almatrah’s phone passcode and iCloud password. Almatrah then reset the phone for his own use. He told [MR] not to tell the cops or anyone and to be back in five minutes.
[MR] went to his house, collected $1,200 cash, and came back to the Mercedes. He handed the cash to Almatrah who then told [MS] to get out of the car. The Mercedes drove off. This is Charge 5, robbery of money and the phone, again on a complicity basis as between Almatrah and Khodr.
Charge 6 is the charge of robbery against Ates but limited to the money.
Later that day, [MR] went to a police station and reported the incident. He suffered a swollen right cheek and bruising to his face. [MS] provided a statement of no complaint to police on 11 April 2020.
…
Almatrah’s house was searched on 13 May, and he was arrested. An i-Phone belonging to [MR] was seized and Almatrah failed to comply with the direction to provide access to the phone. That is summary Charge 7.
Ates was arrested the same day and two phones, an Apple i-watch and a taser were seized. That is summary Charge 6, possession of a prohibited weapon.
On one of the phones, police found text messages and photographs referring to the co-accused and the events of 9 April to which I referred earlier.
Khodr was also arrested on 13 May and an i-watch and iPhone were seized. Each offender gave a no comment interview when arrested.[8]
[8]Reasons, [2]–[21].
Reasons for sentence
Gravity of offending
After summarising the circumstances of offending,[9] the judge concluded that the assault, false imprisonment and robbery were serious offences in the context of ‘vigilante-style acts against teenagers’.[10] The judge described the assaults as ‘callous and frightening’ notwithstanding the absence of serious injuries, and the false imprisonment carried with it a threat ‘inherent in taking the boys away in the car’.[11] Furthermore, ‘[as] to the robbery, a large amount of money was demanded from the victims, about three times that which was considered owing’.[12] In considering the seriousness of the offending, her Honour contrasted the size of the older and more physically mature offenders to the victims’ appearance in the photographs tendered at the hearing.[13] It was also noted that the offending was planned in advance.[14]
[9]See paragraph [6] of these reasons for judgment.
[10]Reasons, [23].
[11]Ibid [23].
[12]Ibid [26].
[13]Ibid [24].
[14]Ibid [28]–[29].
Importantly to the ground of appeal, the judge did not seek to distinguish between the roles of the offenders in her evaluation of the objective gravity of the offending conduct.[15] Her Honour set out the key aspects of each co-accused’s background, as summarised below.
[15]Ibid [41].
(a)The applicant
•At the time of sentencing, he was 29 years old, and at the time of offending was aged 27 years.
•He was born in Melbourne of Syrian and Lebanese descent.
•He was an outstanding young footballer whose career was curtailed by injury.
•He is in a stable relationship with his partner and is well-regarded by his friends.
•He has quite an extensive criminal history for a young man. As this is the only real distinguishing factor between the applicant and his co-accused, we shall set out her Honour’s remarks in full:
Your criminal history dates back to 2014 when you were aged 19 and were placed on a CCO for drug trafficking and drug possession. Later, in 2014, you were again before the Magistrates’ Court for a charge of recklessly causing injury, but no conviction was recorded; 2015 saw you back in court and dealt with for breaching that CCO and some other charges which did not result in conviction. You were given considerable leniency during those years, likely to have been in recognition of your youth.
On 16 October 2020, you were sentenced to prison for the first time for four months for a number of driving charges, the most serious of which was reckless conduct endangering serious injury. It appears that this involved a low-speed police pursuit. In 2021, you were fined for a number of driving charges including a third conviction for driving whilst disqualified. You then committed the current offences in 2022.
I have set out some of those details of your offending history because it indicates a poor attitude to authority and a disregard for the safety of others with indications of anti-social behaviour as a younger man. It throws doubt on your prospects for rehabilitation which I shall return to.[16]
[16]Ibid [34]–[36].
•A psychologist, Ms Catherine Stipis, prepared a forensic report. She stated that the applicant has no mental health issues, with no entrenched violent attitudes and that he has a low risk of future offending.[17]
[17]Ibid [39]; Report from Ms Catherine Stipis, dated 1 June 2023 [114], [115].
•The judge assessed his prospects for rehabilitation was probably ‘somewhere between good and guarded’.[18]
[18]Reasons, [50].
(b)Co-offender: Omar Khodr
•Mr Khodr was, at the time of sentence, 29 years old and came to Australia from Lebanon aged 11 years.
•He completed year 12 and commenced — but did not finish — a Civil Engineering degree.
•He then commenced an electrician’s apprenticeship, and now runs an air conditioning business.
•The offending appears to be out of character.
•He has no prior convictions and his referees believed him to be remorseful.
•He has not come to the attention of police in the two years since the offending.
(c)Co-offender: Adam Ates
•Mr Ates was aged 30 years at the time of the sentence and is a qualified cabinet maker who has studied and worked in that capacity since leaving school.
•He suffers from anxiety and depression, as diagnosed by his GP. The loss of his grandparents and an uncle contributed to this.
•A psychologist, Mr Cummins, diagnosed Mr Ates with a Major Depressive Disorder with associated features of anxiety and traumatisation from a dysfunctional childhood.
•Letters of support were received from friends and associates who described him as a loyal and kind person. Her Honour remarked that these factors indicate ‘[Mr Ate’s] behaviour was an aberration and [his] prospects for rehabilitation are probably excellent.’[19]
General and specific deterrence, and prospects of rehabilitation
[19]Ibid [70].
Her Honour then addressed a number of other sentencing related issues that concerned all three offenders:
My broad comments about sentencing issues in this case related to each offender in the same way. An appropriate sentence for each of you must take into account the principles of general and specific deterrence. The starting point in respect of general deterrence is the serious nature of the charges in the context of vigilantism.
The higher courts have condemned behaviour which resorts to taking the law into one’s own hands as all of you did. You each set aside any scruples, and knowing it was wrong, you used your greater physical power and numbers to terrify and hurt the two boys and accordingly, your moral culpability is high. Others who might feel justified in pursuing a grievance against someone need to know that they will be severely punished in the interests, not only of deterrence, but also protection of the community.
…
In Brown v R, a two-year sentence was imposed for a charge of false imprisonment as part of a total effective sentence of five years and six months, with a non-parole period of three years and eight months. The offender was on a four-year Community Correction Order at the time of the offending imposed for similar serious violent offending with similar previous convictions.
The overall circumstances were more serious than is the case here, even when the vulnerability of the victims is taken into account. The manner in which I take specific deterrence into account, depends on your individual circumstances.[20]
[20]Ibid [41]–[47] (citations omitted).
Addressing the applicant, her Honour said:
At this stage … I will indicate that your co-offenders will each be placed on a community corrections order. It has been accepted for some years now, since the guideline case of Boulton v R that an appropriately structured Community Correction Order can amount to adequate punishment and deterrence in cases where there needs to be a strong focus on rehabilitation and where imprisonment can be avoided or limited. It is punitive because of the mandatory conditions that are imposed in addition to those tailored to the case. It is onerous because it intrudes into the life of the offender and places serious obligations on them. It is a viable option to imprisonment where those more severe restrictions are not necessary.[21]
Parity
[21]Ibid [48] (citations omitted).
Her Honour noted the sentencing principle of parity and, addressing the applicant, said:
The principle of parity as between the three of you is to be taken in account but the most significant difference between you and the other two offenders is your criminal history, because that should be regarded as reducing your prospects for rehabilitation. It is why I shall be imposing a combined prison sentence and Community Correction Order in your case.[22]
Pleas in mitigation
[22]Ibid [49].
Taking into consideration the offenders’ early guilty plea, her Honour stated:
You have each pleaded guilty the day before the trial was listed to begin, and have thus avoided a trial and spared witnesses from having to give further evidence …
It was submitted that although the plea was entered so late, it was in effect an early plea because the indications were, in October last year, that you would each plead guilty to false imprisonment instead of the kidnapping charges, which were on the original indictment.
You are each entitled to a discount on your sentence because of the plea and its assistance to the criminal justice system in avoiding a trial, and I also accept it as demonstrating remorse to some extent. I was referred by the learned prosecutor to three sentences bearing some similarities with this case, and I have given each consideration.[23]
[23]Ibid [43]–[45].
Considering other pleas in mitigation, her Honour considered the two-year delay in the matter being heard in court, and that all three offenders ‘had the case hanging over [their] heads for that time, regardless of the causes of that’.[24]
[24]Ibid [52].
This appeal
In substance, the applicant accepted that some disparity was appropriate as between the applicant and his two co-offenders but contended that the sentence imposed was widely and unjustifiably disparate, leaving him with ‘a justified sense of grievance’.[25] Further illustrating this disparity are the remarks of her Honour at the sentence indication hearing (to which we shall return).[26] Senior counsel accepted that in all other respects, the circumstances and criminal participation were very similar across the three offenders, and the need for some disparity arose as a consequence of the applicant’s prior criminal history, which upon close scrutiny was not as unimpressive as it may appear.
[25]Criminal Procedure Act 2009, pt 5.6.
[26]See paragraphs [22]–[28] of these reasons for judgment.
The respondent accepted that the prior criminal history was the predominant distinguishing factor as between the applicant and his co-accused. It informed the applicant’s prospects of rehabilitation evaluated by her Honour as ‘reasonable’ as compared to the ‘good’ or ‘excellent’ prospects for Mr Khodr and Mr Ates respectively.[27] It also informed the sentencing aspect of specific deterrence.[28] The respondent contended that, in the circumstances, the disparity was justified and certainly not manifestly excessive.
[27]Reasons, [61], [70].
[28]Ibid [49].
Consideration
Disparity in sentences
The extent of the disparity in the sentences is clear. The two co-accused were both made the subject of CCO supervision for a total of 3 years with 200 hours of unpaid community work to be performed by each, together with other supervisory conditions. The applicant is the subject of a CCO but for 2 years — not 3 years — and is also to perform 200 hours of unpaid community work. Given that he was sentenced to 12-months’ imprisonment, he also will be under the effective control and supervision of Corrections Victoria for a total of 3 years,[29] but the first year will be served in prison. His prior criminal history, on the judge’s reasoning, was responsible for the disparity.[30] The sole question asked by this application is whether that disparity is manifestly excessive.
Principle of parity
[29]12 months’ imprisonment plus a 2-year CCO.
[30]Reasons, [49].
The parity principle is focussed on notions of equal justice.[31] Those who commit the same offence should be treated equally, save where differences in the role in the offence, age, background, prior criminal history and/or general character justify the imposition of different sentences.[32]
[31]Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); [1997] HCA 26; Hafner v The Queen [2012] VSCA 190, [17] (Buchanan JA, Bongiorno and Osborn JJA agreeing); Grey v The King [2024] VSCA 75, [61] (Walker and Boyce JJA) (‘Grey’).
[32]Grey [2024] VSCA 75, [62] (Walker and Boyce JJA).
It is undisputed that the objective gravity of the offending committed by all three offenders was — for all practical purposes — identical. We agree with the judge that apart from the applicant’s criminal history, there are no other distinguishing circumstances of any substance.
Applicant’s criminal history
We return to the applicant’s criminal history and shall examine it in a little more detail.
Date
Offence
Sentence
Court
22 July 2021
• Drive whilst disqualified
• Drive whilst causing loss of traction
• Fail to wear securely fitted motor bike helmet
• Fail to comply with direction to assist
$800 fine
(conviction)
Bail and Remand Court
16 October 2020
• Drive whilst disqualified (3 charges)
• Fail to give name and address to injured
• Careless driving of a motor vehicle
• Commit indictable offence while on bail (3 charges)
• Contravene conduct condition of bail
• Fail to stop vehicle on police direction
• Reckless conduct endanger serious injury
4-months’ imprisonment and 12-month CCO
(conviction)
Heidelberg Magistrates’ Court
14 October 2020
• Traffick GHB
• Deal in property that is suspected proceed of crime
• Possess methylamphetamine
• Possess alprazolam
• Possess cannabis
27 April 2020
• Fail to stop vehicle on police direction
• State false address when requested
• Careless driving of a motor vehicle
• Unlicensed driving
• Contravene a conduct condition of bail
$1,000 fine
(conviction)
Bail and Remand Court
19 March 2020
• Possess cannabis
• Commit indictable offence whilst on bail
• Contravene a conduct condition of bail
$400 donation to bushfire relief fund
(conviction)
Bail and Remand Court
26 February 2019
• Possess cannabis
• Possess Oxandrolone
• Possess cartridge ammunition without licence or permit
• Drive whilst disqualified
$1,500 fine
(no conviction)
Heidelberg Magistrates’ Court
2 December 2015
• Theft from shop
$200 fine
(no conviction)
Frankston Magistrates’ Court
30 September 2015
• Affray (common law)
• Use licence purporting to be authority / required by RSA
$700 fine + condition
(no conviction)
Melbourne Magistrates’ Court
15 June 2015
• Contravene CCO by trafficking ecstasy, trafficking drug of dependence and using ecstasy
$500 fine + CCO varied
(no conviction)
Melbourne Magistrates’ Court (Heidelberg Div)
28 October 2014
• Cause injury recklessly
• Commit indictable offence while on bail
$3,000 fine
(no conviction)
Melbourne Magistrates’ Court
24 March 2014
• Traffick ecstasy
• Traffic drug of dependence
18-month CCO
(no conviction)
Melbourne Magistrates’ Court
It can be seen that over the course of the decade, the applicant has been sentenced by adult Courts on 10 separate occasions.[33] Although many of his earlier visits to Court resulted in non-convictions, it cannot be said that the offending was trivial. Recklessly causing injury, reckless conduct endangering serious injury,[34] affray, trafficking in GHB, dealing with property suspected of being the proceeds of crime, committing an indictable offence on bail, trafficking in ecstasy, and multiple examples of driving whilst disqualified, collectively bespeak of a persistent indifference to the rule of law. In our view, her Honour was correct to distinguish between the applicant and his co-offenders on the basis of their different criminal histories.
[33]The offences on 14 October 2020 and 16 October 2020 were rolled into one sentence at the Heidelberg Magistrates’ Court.
[34]This offence occurred in the context of a police chase.
In contrast, the co-offenders had both reached relative maturity with an unblemished criminal record. They were both entitled to rely heavily on it, and as we have seen, this bore directly on the sentences imposed on them both.
Is the sentence disparity manifestly excessive?
It can be distilled from her Honour’s thorough and transparent reasons for sentence that the applicant’s comparatively diminished prospects for rehabilitation was the primary factor that justified, in her Honour’s evaluation, the sentencing disparity.[35] Firstly, we agree with the judge that the applicant’s prospects for rehabilitation were a good deal less promising than his co-offenders. Secondly, we agree that this must translate into a disparity as between the sentences imposed. Thirdly, although we regard this disparity as quite marked, we are not satisfied that it is, in itself, manifestly excessive.
[35]See especially Reasons, [31], [36], [41] and [48]–[50].
We consider that, given the serious misconduct that constituted the relevant offending, that the co-accused were extended significant leniency by her Honour and their sentences can be considered to be towards the bottom of the range available to her Honour in the appropriate exercise of her sentencing discretion.[36] The applicant was not extended such leniency, and the judge explained why.[37] In all the circumstances, we are unable to conclude underlying error in the disparate sentences imposed in this sentencing exercise.
[36]The co-accused were sentenced to a 3-year CCO on multiple offences that carry a maximum sentence of 5–15 years’ imprisonment.
[37]See paragraphs [7]–[13] of these reasons for judgment.
It will be recalled that the applicant constructed an argument in support of manifest disparity arising from certain remarks made by her Honour in the sentencing indication hearing. That hearing took place in July 2023; that is 10 months before the plea hearing.[38] At that stage, the charges before her Honour were different on a material aspect. The applicant was then charged with kidnapping, not false imprisonment. Kidnapping is an offence created by section 63A of the Crimes Act 1958, and is punishable by a sentence of imprisonment of up to 25 years.[39] It is also an offence that engages the operation of section 5(2H) of the Sentencing Act1991 (‘the Act’).[40] During discussion at the sentencing indication hearing, counsel for the applicant argued for a CCO. In discussion with the prosecutor, the judge said:
I’ve already agreed with [the applicant’s counsel] that the circumstances of Mr Almatrah’s rehabilitation prospects and other matters would very likely take him in the direction of a CCO, a combined CCO, something of that order, but the difficulty remains [with the section 5(2H) factors], so I’m going to take an hour or so to consider those matters and return to court just before 1 o’clock with a decision.
[38]The sentencing indication hearing took place on 26 July 2023, and the plea hearing occurred on 9 May 2024.
[39]Crimes Act 1958, s 63A.
[40]Sentencing Act 1991, s 5(2H). This provision requires the offender of a kidnapping conviction to be imposed with an imprisonment sentence. The offender may be excluded from this imposition if, inter alia, the offender assists (or undertakes to assist) in the investigation or prosecution of an offence, has impaired mental functioning or there are compelling circumstances.
A little later on in her ruling on the sentencing indication, the judge said:
… there is little doubt that Mr Almatrah is well motivated to do well in future. Now, aged 28, he appears to have overcome previous drug abuse and he has no mental health or other difficulties which will prevent him from staying free of crime and achieving the maturity to do that. He is in a stable relationship and has made concrete plans for running a business. He is still relatively young. He has been to prison once and knows what that is like. He would likely be a possible candidate for a combination community correction order.
However, careful consideration of the requirements to meet sub-paragraph (e) unfortunately lead in a different direction. While the kidnapping was a less serious example of the crime than in some other situations, its objective gravity is not at the low-end of the range. This is because the victims were two teenage boys who were placed into a car against their wishes having already been punched and stomped on by Mr Almatrah and the co-accused. In the car, Mr Almatrah continued to punch one of the victims.
The incident went beyond retribution in that the amount of money being demanded was about three times that which was owed. It was a serious incident which would likely have terrified the two teenagers. The absence of a weapon does reduce the seriousness somewhat but the two victims were facing three adult men whose fists were more than adequate to mete out injury and fear. There is nothing unusual let alone unique in the applicant’s mitigating factors.
When considered in combination with the circumstances of the offending, the stringent test provided by sub-paragraph (e) is not met. The words ‘substantial and compelling’ and ‘exceptional and rare’ call for a high level of exception that is hard to meet in most cases and clearly that is the intention of Parliament.
Were it not for the stringency of the test, I would place considerable weight on the need to consider imprisonment as a last resort in this case. By legislating the strict test in [section 5(2H)], the Parliament has effectively overridden the need to consider prison as a last resort.[41]
[41]Her Honour’s reference to ‘subsection (e)’ is referring to Sentencing Act 1991, section 5(2H)(e).
On this appeal, the applicant argued that if he had good prospects of receiving either a CCO or combined imprisonment sentence with a CCO on the sentence indication but for the operation of section 5(2H)(e) of the Act on the kidnapping charge, he must have had an even better chance of this outcome after the kidnapping charge was replaced by a false imprisonment charge which is not statutorily linked to section 5(2H).[42]
[42]Sentencing Act 1991, s 5(2H).
On several occasions during the appeal hearing, this Court enquired of the applicant whether this was actually a procedural fairness argument. The applicant disavowed this. He contended that this exchange and the passage from her Honour’s sentencing indication ruling were matters that could guide the Court’s evaluation of whether it had been demonstrated that the disparity was manifestly excessive.
We regard this argument to be of no practical assistance. Either the disparity is manifestly excessive or it is not. Manifest excess arguments are notoriously difficult to establish. The disparity must bespeak underlying error in the proper exercise of the sentencing discretion.[43] The disparity must be wholly outside the sentencing range available to the judge. In making this evaluation, we regard statements made from the bench in a sentencing indication — whether in running or in the ultimate indication itself — as having no impact on the sentence ultimately imposed, save as provided by statute in part 5.6 of the Criminal Procedure Act 2009.[44]
[43]Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157; Rohen v The King [2024] VSCA 1, [123] (Priest, Taylor and Boyce JJA).
[44]Criminal Procedure Act 2009, pt 5.6. See Karam v The King [2024] VSCA 164, [42] (T Forrest JA).
Conclusion
Leave to appeal against sentence must be refused.
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