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DPP v El Hajje

DPP v El Hajje

Case [2009] VSCA 160 26 June 2009

Sentencing

Appeal

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 877 of 2008

Director of Public Prosecutions
	v.
Fedi El Hajje

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JUDGES:	Maxwell P, Vincent JA and Coghlan AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2009
DATE OF JUDGMENT:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 160
JUDGMENT APPEALED FROM:	R v El Hajje (Unreported, County Court of Victoria, Judge Lacava, 26 September 2008)

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CRIMINAL LAW – Sentence appeal by Director of Public Prosecutions –Aggravated burglary – Theft – Obtaining property by deception – Attempt to obtain property by deception – Sentenced to three years’ imprisonment wholly suspended – Whether manifest inadequacy – Failure to order any cumulation of sentence – Error of principle in all the circumstances – Sentence imposed outside the appropriate range – Adequacy of current sentencing practices – Appeal allowed – Resentenced to four years’ imprisonment with three years minimum –Crimes Act1958 (Vic) s 567(4)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr M Croucher with Mr P J Doyle	Revill and Papa Lawyers

MAXWELL P
VINCENT JA
COGHLAN AJA:

On 31 July 2008 the respondent, Fedi El Hajje, pleaded guilty in the County Court at Melbourne to two counts of aggravated burglary, two counts of theft, two counts of obtaining property by deception and three counts of attempting to obtain property by deception. Those offences had all been committed between 13 December and 16 December 2006. On 26 September 2008, he was sentenced as set out below:

Table A

Count Offence Maximum Sentence Cumulation

1 Aggravated burglary 25 y 3 y -

2 Theft 10 y 1 y -

3 Obtaining property by deception (‘OPBD’) 10 y Community based order (‘CBO’) 2 y 400 Hours N/A

4 Attempted OPBD 5 y CBO 2 y 400 Hours N/A

5 Attempted OPBD 5 y CBO 2 y 400 Hours N/A

6 OPBD 5 y CBO 2 y 400 Hours N/A

7 Attempted OPBD 5 y CBO 2 y 400 Hours N/A

8 Aggravated burglary 25 y 3 y -

9 Theft 10 y 1 y -

There was no direction for cumulation.

The total effective sentence was 3 years.

The judge directed that the sentence be wholly suspended for a period of 3 years.

The appeal

The Director of Public Prosecutions appealed against those sentences by notice dated 23 October 2008. The grounds of appeal are:

1.The total effective sentence imposed in respect of counts 1, 2, 8 and 9 and the direction by the sentencing judge to wholly suspend the sentence in respect of counts 1, 2, 8 and 9 for a period of 3 years and the sentence imposed on counts 3, 4, 5, 6 and 7, resulted in the overall sentence being manifestly inadequate in the circumstances.
Particulars

In ordering a total effective sentence of 3 years imprisonment in respect of counts 1, 2, 8 and 9 and directing that the sentences be wholly…

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 El Hajje

Details

AGLC: DPP v El Hajje [2009] VSCA 160
Case: [2009] VSCA 160
Decision Date: 26 June 2009

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v El Hajje, the appellant, the Director of Public Prosecutions, sought leave to appeal against the sentence imposed on the respondent, El Hajje, who was convicted of aggravated burglary, theft, obtaining property by deception and an attempt to obtain property by deception. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate. The court was also required to determine whether the trial judge erred in failing to order any cumulation of the sentence, and whether there was an error of principle in all the circumstances.

The court held that the sentence imposed by the trial judge was manifestly inadequate and that there was an error of principle in all the circumstances. The court found that the sentence imposed was outside the appropriate range and that the trial judge had not adequately considered the totality of the offending and the need for general deterrence. The court also found that the trial judge erred in failing to order any cumulation of the sentence, as the offences were committed in a single course of conduct. The court held that the failure to order cumulation of the sentence was an error of principle and that the sentence imposed was inadequate to achieve the purposes of punishment and deterrence.

In light of the above findings, the appeal was allowed, and the sentence was quashed. The respondent was resentenced to four years’ imprisonment with a minimum of three years to be served before any eligibility for parole. The court held that the appropriate sentence should reflect the seriousness of the offences and the need for general deterrence. The court noted that the current sentencing practices may not adequately address the gravity of the offending and that a more severe sentence was necessary in this case.

Orders