JUDGES:	PRIEST, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2020
DATE OF JUDGMENT:	9 September 2020
MEDIUM NEUTRAL CITATION	[2020] VSCA 232
JUDGMENT APPEALED FROM:	[2020] VCC 374 (Judge Gaynor)

---

CRIMINAL LAW – Appeal – Sentence – Sentencing procedure – Principle of parity – Approach to sentencing co-offenders – Theft of a motor vehicle – Conduct endangering serious injury – Damaging property – Verdins considerations – Weighting of mitigating factors – Comparison of mitigating factors of co-offenders – Seriousness of theft of a motor vehicle – Impact of value of property on seriousness of theft – Impact of value of damage on seriousness of offence of damaging property – Weighting of criminal history in sentencing calculus – Comparison of criminal histories of co-offenders – Comparison of personal circumstances of co-offenders – Comparison of seriousness of individual charges in sentencing co-offenders – Impact of institutionalisation on weight of burden of imprisonment – Leave to appeal refused; R v Verdins (2007) 16 VR 279, R v Abdul-Rasool (2008) VR 586, McPhee v The Queen [2014] VSCA 156, Ah-Kau v The Queen [2018] VSCA 296, Nipoe v The Queen [2020] VSCA 137 considered – Crimes Act 1958 ss 23, 74(1) 197(1), Criminal Procedure Act 2009 s 280(1)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant (Chamma)	Ms G Connelly	Valos Black & Associates
For the Applicant (El Houli)	Mr P J Smallwood	Theo Magazis & Associates
For the Respondent	Mr C Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA
T FORREST JA:

Amir El Houli and Osman Chamma both pleaded guilty to various offences committed at a business in Altona North. They were both sentenced to effective sentences of three years and one month’s gaol with a minimum term before parole eligibility of 20 months. The following tables set out the sentencing details for each applicant.

Osman Chamma

Charge No

Offence

Maximum

Sentence

Cumulation

2.

Theft (s 74(1) of the Crimes Act 1958)

10 years imprisonment

4 months imprisonment

Nil

3.

Theft (s 74(1) of the Crimes Act 1958)

10 years imprisonment

12 months imprisonment

4 months imprisonment

4.

Theft (s 74(1) of the Crimes Act 1958)

10 years imprisonment

12 months imprisonment

4 months imprisonment

5.

Theft (s 74(1) of the Crimes Act 1958)

10 years imprisonment

12 months imprisonment

4 months imprisonment

7.

Damaging property (s 197(1) of the Crimes Act 1958)

10 years imprisonment

6 months imprisonment

2 months imprisonment

8.

Damaging property (s 197(1) of the Crimes Act 1958)

10 years imprisonment

6 months imprisonment

2 months imprisonment

9.

Theft (s 74(1) of the Crimes Act 1958)

10 years imprisonment

10 months imprisonment

3 months imprisonment

10.

Theft (s 74(1) of the Crimes Act 1958)

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 Chamma v The Queen

Details

AGLC: Chamma v The Queen [2020] VSCA 232
Case: [2020] VSCA 232
Decision Date: 9 September 2020

CaseChat Overview and Summary

In the matter of Chamma v The Queen, the appellant was convicted for theft of a motor vehicle and causing damage to property. The case was appealed to the Victorian Court of Appeal. The central issues before the court involved the principles of parity and the appropriate approach to sentencing co-offenders, particularly in relation to the weighing of mitigating factors and the comparative seriousness of the respective charges. The court was tasked with assessing whether the sentence imposed on the appellant was just and whether the trial judge correctly applied the principles in sentencing.

The court considered the principle of parity, which dictates that co-offenders should generally receive similar sentences unless there are compelling reasons to the contrary. In this case, the appellant argued that the trial judge had not adequately considered the mitigating factors in his favour, particularly his personal circumstances and the impact of imprisonment. The court examined the factors outlined in Verdins and subsequent cases, such as Abdul-Rasool, McPhee, Ah-Kau, and Nipoe, to understand how these factors should influence sentencing. The court also assessed the seriousness of the theft and the damage caused, the value of the stolen property, and the respective criminal histories and personal circumstances of the co-offenders.

After careful consideration, the court found that the trial judge had correctly applied the principles of parity and appropriately weighed the mitigating factors. The court determined that the sentence imposed was commensurate with the seriousness of the offences and the respective roles of the co-offenders. The mitigating factors presented by the appellant, while significant, did not outweigh the gravity of the crimes committed. The court emphasised the importance of consistency in sentencing co-offenders and the need to balance individual circumstances with the overall context of the offending. Consequently, the appeal was dismissed.

The court upheld the sentence imposed by the trial judge and did not alter the terms of the appellant's punishment. The decision reaffirms the importance of a principled approach to sentencing, particularly when dealing with co-offenders, and highlights the need for courts to carefully consider all relevant factors to ensure justice is served.

Orders