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DPP v Ghazi

DPP v Ghazi

Case [2015] VSCA 188 21 July 2015

Criminal Liability

Sentencing

Manifestly Inadequate Sentence

Rehabilitation

Youthful Offender

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0227
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ABDULLAH GHAZI	Respondent

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JUDGES:	REDLICH, SANTAMARIA and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 May 2015
DATE OF JUDGMENT:	21 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 188
JUDGMENT APPEALED FROM:	DPP v Ghazi (Unreported, County Court of Victoria, Judge Parsons, 19 September 2014)

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CRIMINAL LAW – Sentence – Five armed robberies – Youthful offender – Child offender at time of first two armed robberies – Whether sentencing judge wrongly excluded general deterrence as a sentencing consideration in respect of all charges – CNK v The Queen (2011) 32 VR 641; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43, considered – Whether sentence manifestly inadequate – Importance of rehabilitation for a very youthful offender – Sentence imposed lenient but not outside the range – Appeal dismissed.

CRIMINAL LAW – Whether Director must establish manifest inadequacy in order to succeed on a ground alleging specific error – Criminal Procedure Act 2009 s 289 – Need to prove manifest inadequacy doubted.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J R Champion QC with Ms G A Coghlan	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent	Mr L W Hartnett with Ms K A Blair	Dean Cole & Associates

REDLICH JA

SANTAMARIA JA
BEACH JA:

The respondent was sentenced in the County Court to three years’ detention in a youth justice detention centre on five charges of armed robbery, one charge of criminal damage, two charges of attempted armed robbery, one charge of obtaining property by deception and a summary offence of possession of a controlled weapon without excuse.[1]
[1]DPP v Ghazi (Unreported, County Court of Victoria, Judge Parsons, 19 September 2014) (‘Reasons’).

The Director of Public Prosecutions (‘Director’) appeals against the respondent’s sentence on two grounds:

1. The learned sentencing judge erroneously applied CNK v The Queen[2] and therefore wrongfully excluded general deterrence as a sentencing consideration relevant to charges 3–9 and the summary offence.
2.The sentence imposed was manifestly inadequate. In fixing the sentence … the sentencing Judge–
(a) failed to give sufficient weight to the principles of punishment, denunciation, protection of the community and both general and specific deterrence;
(b) failed to have sufficient regard to the nature and gravity of the offences;
(c) failed to have sufficient regard to the maximum penalties prescribed for the offences;
(d) gave excessive weight to factors in mitigation including the respondent’s youth; and
(e) failed to have sufficient regard to the impact of offending upon the victims.

[2](2011) 32 VR 641 (‘CNK’).

For the reasons that follow, we consider that the appeal should be dismissed.

Circumstances of the offending

The respondent pleaded guilty to each charge on the indictment. The respondent was 17 years of age at the time of the commission of charges 1 and 2. He was aged 18 at the time…

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 Ghazi

Details

AGLC: DPP v Ghazi [2015] VSCA 188
Case: [2015] VSCA 188
Decision Date: 21 July 2015

CaseChat Overview and Summary

The matter of DPP v Ghazi came before the court where the Director of Public Prosecutions sought to appeal the sentences imposed by the County Court on Ghazi, who had been convicted of five armed robberies. The primary issue for the court was whether the sentencing judge had erred in his assessment of the general deterrence aspect of sentencing for all charges. The appellant argued that the judge failed to properly consider general deterrence, and whether this constituted a specific error in sentencing that warranted an appeal. Additionally, the court had to determine if the sentence imposed was manifestly inadequate and whether the importance of rehabilitation for a youthful offender had been adequately considered.

In assessing these issues, the court referred to previous cases such as CNK v The Queen, R v Mills, and Azzopardi v The Queen, which emphasised the need for a balanced approach to sentencing, taking into account both general and specific deterrence. The court found that while the sentencing judge had considered general deterrence, the weight given to this consideration might have been insufficient. However, the court also noted that the sentence imposed was lenient but not outside the usual range for such offences. The importance of rehabilitation for a youthful offender was acknowledged, but the court concluded that the sentence, though lenient, was not manifestly inadequate. The court doubted whether the Director must establish manifest inadequacy to succeed on a ground alleging specific error under the Criminal Procedure Act 2009 s 289.

Ultimately, the court dismissed the appeal. The sentence imposed on Ghazi was considered lenient but not manifestly inadequate, and the sentencing judge's approach to general deterrence, while not ideal, did not reach the level of specific error that would warrant an appeal. The court emphasised that while the importance of rehabilitation for a youthful offender was significant, it did not override the need for a balanced sentencing approach that includes consideration of general deterrence.

Orders