DPP v Akkari - [2003] VSCA 98

SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 96 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
MOHAMMED AKKARI

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2003
DATE OF JUDGMENT:	24 July 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 98

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CRIMINAL LAW – Sentencing – Appeal by Director – On ground of breach of undertaking to give evidence against co-offender – Aggravated burglary, reckless injury and theft – C.B.O. replaced by 12 months' imprisonment wholly suspended – Crimes Act 1958, s.567A(1A).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. (DPP) with Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr S. Grant	Theo Magazis & Associates

BATT, J.A.:
1 The respondent to this appeal by the Director of Public Prosecutions, Mohammed Akkari, was born on 18 April 1983 and so is now aged 20 years. He was 18 at the time of the offending which I am about to mention. On 13 October 2001 he took part in a serious example of aggravated burglary[1], assault, and robbery. In short, at about 10 p.m., after an 85-year-old man who lived alone had refused the respondent and his co-offender entry into his house, the co-offender forced an entry by breaking down the door with his hip and shoulder. The victim was then wrestled to the ground by the co-offender, where he was punched a number of times to the head and held down. The co-offender reached into the front pocket of the victim’s trousers and stole his wallet, which contained $1,200 in cash. The victim’s phone line was then ripped from the wall, disabling it. (The respondent claimed that this was not done deliberately but occurred as a result of his tripping in the phone line.) The offenders then ran from the house, leaving the victim lying injured on the floor, and drove away in the co-offender’s car. The respondent was given $200 of the stolen money, which he spent. The victim received grazing and bruising to the right side of his face and general soreness to his body as a result of the attack. He was also emotionally upset by the incident and, not unnaturally, was afraid to stay at his home.
[1]The circumstance of aggravation being that at the time of entry into the building a person was then present in it as the respondent knew.

2 On 2 November 2001 the respondent was interviewed by police and made full admissions. The interview was recorded. He also provided a signed, written statement identifying and implicating the principal offender as Renato Marinelli, a man of 35 years. In it he stated that Marinelli had informed him that the victim owed him $1,500 and he said that they went to his house to ask that the money be returned. (It appears, in fact, that Marinelli and the victim were known to each other and that the truth was that Marinelli owed the victim $100 by way of…

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 DPP v Akkari

Details

AGLC: Director of Public Prosecutions v Akkari [2003] VSCA 98
Case: [2003] VSCA 98
Decision Date: 24 July 2003

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Akkari involved an appeal by the Director against the sentence imposed on Akkari. Akkari had been found guilty of aggravated burglary, reckless injury, and theft. The Director appealed the sentence on the ground that Akkari had breached an undertaking to give evidence against a co-offender. The case was heard in the County Court of Victoria.

The central legal issue before the court was whether the breach of the undertaking to testify against a co-offender constituted a sufficient ground for the Director to appeal the sentence. The court needed to consider the circumstances under which such an appeal could be justified and the extent to which the breach influenced the sentencing decision. The court also needed to balance the original sentencing considerations with the principle of finality in sentencing and the potential implications of the breach on the justice system.

The court held that the breach of the undertaking to testify against a co-offender did constitute a ground for appeal. The sentencing judge had not adequately considered the breach when determining the sentence, which led to the court concluding that the sentence was manifestly inadequate. The court noted that while the principle of finality in sentencing is important, it is not absolute, especially when there has been a significant breach of a condition that influenced the original sentence. The original sentence of a Community Based Order (C.B.O.) was replaced by a sentence of 12 months’ imprisonment, wholly suspended, under section 567A(1A) of the Crimes Act 1958.

The final orders of the court were that the original sentence of a C.B.O. was quashed, and in its place, a sentence of 12 months' imprisonment was imposed, wholly suspended for a period of two years. This decision emphasised the importance of adhering to undertakings given to the court, especially in cases involving serious offences. The court’s ruling reinforced the principle that a breach of such an undertaking can be a valid ground for appeal and may result in a reconsideration of the sentence.

Orders