Dabaja v The King - [2023] VSCA 209

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0076

HUSSEIN DABAJA	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2023
DATE OF JUDGMENT:	6 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 209
JUDGMENT APPEALED FROM:	[2023] VCC 541 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Whether judge erred in finding Sentencing Act 1991, s 5(2HA) engaged – Section 5(2HA) directed to whether impaired mental functioning caused substantially by self-induced intoxication, not whether offending caused substantially by self-induced intoxication – Applicant resentenced.

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Counsel
Applicant:		Mr J Portelli
Respondent:		Ms KB Hamill
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

On 28 November 2022, the applicant, now aged 20 years,[1] pleaded guilty to one count of armed robbery, one count of intentionally damaging property, one count of common assault and one count of making a threat to inflict serious injury. He also pleaded guilty to the summary charge of committing an indictable offence whilst on bail.
[1]The applicant’s date of birth is 7 December 2002.
Following pleas on 28 November 2022 and 28 March 2023, the applicant was sentenced on 5 April 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Armed Robbery[2]	25 years	15 months in YJC	Base
2	Intentionally Damage Property[3]	10 years	9 months in YJC	—
3	Common Assault[4]	5 years	6 months in YJC	—
4	Threaten Serious Injury[5]	5 years	9 months in YJC	—
SC 1	Commit Indictable Offence Whilst on Bail[6]	3 months	1 month in YJC	1 month
Total Effective Sentence:		16 months’ detention in a Youth Justice Centre
Non-Parole Period:		Not applicable
Pre-Sentence Detention declared:		33 days
Section 6AAA Statement:		24 months’ detention
Other Relevant Orders: 1. Forfeiture and Disposal Orders

[2]Contrary to Crimes Act 1958, s 75A.

[3]Contrary to Crimes Act 1958, s 197(1).

[4]Contrary to common law.

[5]Contrary to Crimes Act 1958, s 21.

[6]Contrary to Bail Act 1977, s 30B.

On 29 December 2022, the co-offender, SM,[7] had his matter finalised in the Broadmeadows Children’s Court. The charges were dismissed and compliance with a good behaviour bond ordered.
[7]The co-offender was dealt with in the Children’s Court and conformably with s 534 of the Children, Youth and Families Act 2005, a pseudonym has been given to him.

Grounds of appeal

The applicant sought leave to appeal against sentence on two grounds:
1.The sentencing judge erred in not finding that there were substantial and compelling circumstances that are exceptional and rare, within the meaning of section 5(2H)(e) of the Sentencing Act 1991.
Particulars
That the sentencing judge erred by engaging in a comparative analysis of the factors relied on by the applicant with the factors referrable to the respondent, Lombardo in the decision of DPP v Lombardo [2022] VSCA 201.
2.In all of the circumstances of the offending and the offender, the…

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 Dabaja v The King

Details

AGLC: Dabaja v The King [2023] VSCA 209
Case: [2023] VSCA 209
Decision Date: 6 September 2023

CaseChat Overview and Summary

Dabaja v The King involved an appeal against the sentence imposed by the trial judge. The applicant was convicted of serious criminal offences and sought to appeal the severity of the sentence, arguing that the trial judge erred in applying section 5(2HA) of the Sentencing Act 1991. This section is concerned with whether the offender’s impaired mental functioning was substantially caused by self-induced intoxication at the time of the offence. The appeal centred on whether the trial judge correctly interpreted and applied the statutory provision.

The primary legal issue before the court was whether the trial judge appropriately applied the criteria outlined in section 5(2HA) of the Sentencing Act 1991. The court needed to determine if the trial judge correctly assessed whether the applicant's impaired mental functioning was substantially caused by self-induced intoxication and, if so, whether this affected the sentencing decision. The court also had to consider if the trial judge’s interpretation of the statutory provision was accurate and aligned with the legislative intent.

The court examined the trial judge's application of section 5(2HA) and found that there was a misinterpretation of the statutory criteria. The court clarified that section 5(2HA) is concerned with whether the offender’s impaired mental functioning was substantially caused by self-induced intoxication, not whether the offending itself was substantially caused by such intoxication. Given this misinterpretation, the court concluded that the trial judge's sentencing decision was flawed. Consequently, the applicant was resentenced.

The final orders of the court involved the resentencing of the applicant, with the court providing detailed reasons for the new sentence. The court took into account all relevant factors and correctly applied the law, ensuring that the resentencing aligned with the statutory requirements and the principles of sentencing.

Orders