Anas Abdulfatah v The Queen - [2019] VSCA 262

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0228

ANAS ABDULFATAH	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	FERGUSON CJ, WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2019
DATE OF JUDGMENT:	15 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 262
JUDGMENT APPEALED FROM:	[2018] VCC 1532 (Judge Lewitan)

---

CRIMINAL LAW – Leave to appeal sentence – Double punishment – Same injury alleged in respect of cause injury recklessly and aggravated carjacking charges – Respondent conceded no cumulation warranted – Leave refused – No reasonable prospect total effective sentence reduced despite error – Criminal Procedure Act 2009 sub-ss 280(1)(b), 280(2) applied.

CRIMINAL LAW – Leave to appeal sentence – Ground of manifest excess – Offending over 5 hour period against four victims, four separate incidents – Cause injury recklessly, common assault, aggravated carjacking, damage property, driving offences – Verdins factors given appropriate weight – Insight into likely effects of drug use on pre-existing mental illness – Totality considerations and presumption of cumulation appropriately balanced – Leave refused – R v Verdins (2007) 16 VR 269 considered – Wright v The Queen (2015) A Crim R 261, R v Martin (2007) 20 VR 14, DPP v Davis [2017] VSCA 341 referred to – Sentencing Act 1991 ss 10AD, 16(3C) considered – Criminal Procedure Act 2009 sub-ss 280(1)(b), 280(2) applied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	James Dowsley & Associates
For the Respondent	Ms R L Harper	Mr J Cain, Solicitor for Public Prosecutions

FERGUSON CJ

WHELAN JA
PRIEST JA:

The applicant is a man of Sudanese origin, now in his early 30s, who suffers from a serious mental illness, schizoaffective disorder. He has not been consistently compliant with his medication and he has used illegal drugs. This combination of circumstances has resulted in him consistently offending. He has been constantly before the courts since he was 17 years of age.

The offences which are the subject of this application were committed over approximately a five hour period commencing at 7.15 pm on 11 January 2017. The applicant assaulted a female acquaintance who believed that he had stolen money from her, and then went on what can only be described as a rampage, involving carjacking, dangerous driving, and unprovoked assaults on complete strangers.

On 16 August 2018 the applicant pleaded guilty in the County Court to six charges on an indictment. There were three charges of causing injury recklessly, a charge of aggravated carjacking, a charge of common law assault, and a charge of damaging property. In addition, he pleaded guilty to three summary charges, being committing an indictable offence whilst on bail, driving in a manner dangerous, and unlicensed driving.

Following a plea, the applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1. Cause injury recklessly [s 18 of the Crimes Act 1958 (Vic)]
5 years
2 years 1 year

2. Cause injury recklessly [s 18 of the Crimes Act 1958 (Vic)]
5 years
2 years 1…

Charge	Offence	Maximum	Sentence	Cumulation
1.	Cause injury recklessly [s 18 of the Crimes Act 1958 (Vic)]	5 years	2 years	1 year
2.	Cause injury recklessly [s 18 of the Crimes Act 1958 (Vic)]	5 years	2 years	1…

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 Anas Abdulfatah v The Queen

Details

AGLC: Anas Abdulfatah v The Queen [2019] VSCA 262
Case: [2019] VSCA 262
Decision Date: 15 November 2019

CaseChat Overview and Summary

The appellant, Anas Abdulfatah, sought leave to appeal against his sentence, arguing that the trial judge had erred in allowing cumulation of sentences for different charges relating to the same incident. The respondent, The Queen, conceded that no cumulation was warranted, but the appellant argued this error led to a manifestly excessive sentence. The Court of Appeal was tasked with determining whether the appellant had demonstrated a reasonable prospect that his total effective sentence would be reduced if the errors were corrected, and if the sentence was manifestly excessive. The court also had to consider the Verdins factors and the balance between totality considerations and the presumption of cumulation.

The court found that the trial judge had correctly considered the Verdins factors, appropriately weighing the seriousness of the offending, the appellant’s insight into the likely effects of his drug use on his pre-existing mental illness, and the totality of the offending. The court held that the appellant had not demonstrated a reasonable prospect that his total effective sentence would be reduced if the errors were corrected. The court also found that the sentence was not manifestly excessive, as the totality considerations and the presumption of cumulation were appropriately balanced. The court referred to relevant case law, including R v Verdins, Wright v The Queen, R v Martin, and DPP v Davis, and considered the provisions of the Sentencing Act 1991 and the Criminal Procedure Act 2009.

The Court of Appeal held that the appellant had not satisfied the criteria for leave to appeal under the Criminal Procedure Act 2009. The court found that there was no reasonable prospect that the total effective sentence would be reduced if the errors were corrected and that the sentence was not manifestly excessive. The court refused the appellant leave to appeal.

No further orders were made by the court.

Orders