Diab v The King (No 2) - [2023] VSCA 112

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0132

FADI DIAB	Appellant
v
THE KING	Respondent

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JUDGES:	BEACH, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF JUDGMENT:	12 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 112
JUDGMENT APPEALED FROM:	[2022] VCC 788 (Judge Chambers)

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CRIMINAL LAW – Resentencing of successful appellant – Conviction by jury on two charges of discharging a firearm being reckless as to the safety of a police officer contrary to s 31C of the Crimes Act 1958 set aside pursuant to s 276(1)(a) of the Criminal Procedure Act 2009 – Appellant convicted and sentenced on alternative charge of discharging a firearm at a vehicle to which he pleaded guilty.

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Counsel
Appellant:		Mr D Dann KC
Respondent:		Ms E Ruddle KC with Ms B Goding
Solicitors
Appellant:	Marcevski Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA
KAYE JA:

The appellant was convicted, by the jury empanelled on his trial, of two charges of discharging a firearm, being reckless as to the safety of a police officer (contrary to s 31C(1) of the Crimes Act 1958). His application for leave to appeal, and his appeal, against conviction on those charges, were upheld by this Court, pursuant to s 276(1)(a) of the Criminal Procedure Act 2009.[1] As a result, the convictions, and the sentences imposed, on those charges has been set aside, and, in lieu, he has been convicted of an alternative charge of discharging a firearm at a vehicle, to which he pleaded guilty.
[1]Diab v The King [2023] VSCA 107 (Beach and Kaye JJA; Niall JA contra).
Before the jury was empanelled, the appellant pleaded guilty to two charges, contained in a second indictment, namely, one charge of possession of a general category handgun without a licence (contrary to s 7(1) of the Firearms Act), and one charge of handling stolen goods, namely, a .38 Smith & Wesson revolver (contrary to s 88 of the Crimes Act). He also pleaded guilty to a summary charge of failing to store cartridge ammunition (contrary to s 121(1A) of the Firearms Act).
After a plea, that was presented on his behalf, the appellant was sentenced by the trial judge to a total effective sentence of 7 years, 5 months and 18 days’ imprisonment, with a minimum non-parole period of 5 years.
As a consequence of the appellant’s acquittal by this Court of the two charges of discharging a firearm, being reckless as to the safety of a police officer, it is necessary to re-sentence him by imposing a sentence, on the alternative charge, of discharging a firearm at a vehicle, to which he pleaded guilty, and, accordingly, to set a total effective sentence and non-parole period.
The sentences imposed on the appellant, by the trial judge, were as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Trial Indictment K12499808.2A
1	Discharging a firearm reckless to safety of a police…

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 Diab v The King (No 2)

Details

AGLC: Diab v The King (No 2) [2023] VSCA 112
Case: [2023] VSCA 112
Decision Date: 12 May 2023

CaseChat Overview and Summary

The case of Diab v The King (No 2) was heard by the Court of Appeal in Victoria, involving the appellant, Diab, and the respondent, the King. The appellant, who was previously convicted by a jury on two charges of recklessly discharging a firearm at a police officer, appealed against his conviction and sentence. The primary issue before the court was whether the conviction on the first charge was to be set aside and if a new sentence should be imposed on the alternative charge to which the appellant had pleaded guilty. The appeal also raised questions about the adequacy of the sentence imposed on the second charge.

The court examined the legal principles surrounding the setting aside of convictions and the appropriateness of the sentence imposed. It considered the appellant's arguments regarding the adequacy of the evidence and the proportionality of the sentence. The court was required to decide whether the trial judge had erred in his assessment of the evidence and whether the sentence imposed was manifestly inadequate. The court also considered the need for the sentence to reflect the seriousness of the offence and to deter the appellant and others from engaging in similar conduct.

The Court of Appeal determined that the conviction on the first charge should be set aside as the evidence was not sufficient to establish the appellant's guilt beyond reasonable doubt. However, the court upheld the conviction on the second charge, to which the appellant had pleaded guilty. The court found that the sentence imposed on the second charge was manifestly inadequate and did not reflect the seriousness of the offence. As a result, the court ordered a resentencing hearing to determine an appropriate sentence. The court emphasised the importance of sentencing that adequately reflects the gravity of the offence and serves as a deterrent against similar conduct.

Orders