DPP v El-Haouli & Shomshe - [2006] VSC 165

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1534 of 2004

DIRECTOR OF PUBLIC PROSECTIONS

MOHMOUD EL-HAOULI

and

MURAT SHOMSHE

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 -27 April 2006
DATE OF SENTENCE:	28 April 2006
CASE MAY BE CITED AS:	DPP v El-Haouli & Shomshe
MEDIUM NEUTRAL CITATION:	[2006] VSC 165

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Criminal Law – Sentencing – affray – Pleas of guilty – young first offenders - 5 ½ years delay – undertakings to give evidence against co-accused – short affray – offenders suffered ongoing physical and psychological injuries - release on adjournment without conviction –Sentencing Act 1991, s. 75

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APPEARANCES:

Counsel

Solicitors

For the Director of Pubic Prosecutions

Mr T Gyorffy QC
with Mr P A D’Arcy

Mr S Carisbrooke, Acting Solicitor for Public Prosecutions

For Mohmoud El-Haouli

For Murat Shomshe

Mr C Trail

Mr A Lavery

C D Trail Lawyers

Ann Valos Solicitors

HIS HONOUR:

Mohmoud El-Haouli and Murat Shomshe, you have been both presented on a charge that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. You have both pleaded guilty to this charge.

Affray is a serious offence. The maximum penalty prescribed for the commission of this offence is 5 years imprisonment.

The circumstances in which you both committed the offence are described in a summary provided by counsel for the Director of Public Prosecutions with the consent of your respective counsel.

At about 11.30pm on 18 November 2000 a fight occurred between two groups of youths on Pearcedale Road, Broadmeadows between the Safeway Supermarket and a building known as Youth Central. At the time there were many people in the area. A cultural festival was underway in the car park and streets around the supermarket. The two groups are referred to in the depositions as the “Turks”, which is the group to which you both belonged, and the “Islanders”. A third group of youths was involved in events that took place before the affray.

Shortly before 11.30pm members of that third group walked past the supermarket where they were confronted by some of the Turks. You, Mr Shomshe, were drunk and challenged a member of the third group to fight. That person pacified you and you said that things were cool and shook his hand.

Then a member of the Islanders, described as a Samoan, walked by. You, Mr Shomshe, threw a bottle at his feet and it smashed. The Samoan was grabbed by another member of the Turks but the Samoan said he did not want to fight. He said he had 30 friends down the road who would bash the Turks if they saw things being thrown at him.

The Samoan alleges he was called a “black cunt” by a member of the Turks. He had a brother aged only 6 with him and was concerned for his welfare. You, Mr Shomshe, stepped in and said “if you want to fight let’s go now”. You did…

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.

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Details

Case: [2006] VSC 165
Decision Date: 28 April 2006

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions versus El-Haouli and Shomshe, the High Court of Australia was tasked with considering the appropriate sentencing for two young individuals who had pleaded guilty to their involvement in an affray. The defendants had engaged in a short altercation that resulted in both parties sustaining physical and psychological injuries. The dispute arose over the appropriate sentence, given the defendants' young age, the significant delay in the proceedings, and the undertakings made by the defendants to provide evidence against their co-accused. The court needed to balance the principles of deterrence, retribution, and rehabilitation against the specific circumstances of the case.

The primary legal issues for the court to decide included the appropriate weight to give the defendants' guilty pleas, the effect of the significant delay in the proceedings on the sentencing, and the nature and circumstances of the affray itself. The court also needed to consider the defendants' age and the impact of the delay on their lives, as well as the undertakings they had made to testify against their co-accused. The court had to determine how these factors should influence the final sentence and whether it was appropriate to release the defendants on an adjournment without a conviction.

The court acknowledged the defendants' young age and the significant delay in the proceedings, which had resulted in the defendants suffering ongoing physical and psychological injuries. The court recognised the importance of the undertakings made by the defendants to provide evidence against their co-accused. Considering these factors, the court decided that it was appropriate to release the defendants on an adjournment without a conviction, allowing them to continue with their lives while awaiting the outcome of their co-accused's trial. This decision was made under the authority of section 75 of the Sentencing Act 1991, which allows for the release of defendants in certain circumstances. The court emphasised that this was not an acquittal and that the defendants remained subject to the possibility of being convicted and sentenced at a later date.

Orders