Almatrah v The King - [2024] VSCA 301

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 &…

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 Almatrah v The King

Details

AGLC: Almatrah v The King [2024] VSCA 301
Case: [2024] VSCA 301
Decision Date: 10 December 2024

CaseChat Overview and Summary

The appellant, Almatrah, appealed against his sentence in the County Court of Victoria, arguing that it was inconsistent with the principle of parity. Almatrah had been convicted of multiple offences, including common law assault, false imprisonment, and robbery. He was sentenced to 12 months' imprisonment and a 2-year community correction order (CCO). His co-accused, who had an unblemished criminal record, received a 3-year CCO but no imprisonment. Almatrah contended that his sentence was disproportionately harsh compared to his co-accused's sentence, despite the objectively similar gravity of the offences committed by both.

The legal issues revolved around whether Almatrah's sentence contravened the principle of parity, which requires that similarly situated offenders receive comparable sentences. Almatrah argued that despite the similar gravity of the offences, his extensive prior criminal history, which included similar offences, warranted a more lenient sentence than his co-accused. The court was tasked with determining whether Almatrah's sentence was unjustifiably disparate given the circumstances of the case and the sentencing principles applicable to co-offenders.

The Supreme Court of Victoria examined the principle of parity and the factors relevant to sentencing, including the nature of the offences, the offender's criminal history, and the need for deterrence and rehabilitation. The court found that the principle of parity does not mandate identical sentences for co-offenders but requires that the sentences be proportionate and not unjustifiably disparate. The court concluded that Almatrah's extensive prior criminal history did not render his sentence unjustifiably disparate, as the sentences were proportionate to the gravity of the offences and the need to achieve the objectives of sentencing, such as deterrence and rehabilitation. The appeal was dismissed.

The Supreme Court of Victoria upheld the County Court's sentencing decision, finding no error in the application of the principle of parity. The court held that Almatrah's sentence was not unjustifiably disparate to that of his co-accused. The appeal was dismissed, and the original sentence stood.

Orders