El-Hage v The Queen - [2012] VSCA 309

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0107

JACQUES EL-HAGE
	v
THE QUEEN

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JUDGES	MAXWELL P, NETTLE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 September 2012
DATE OF ORDERS	10 September 2012
DATE OF JUDGMENT	14 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 309
JUDGMENT APPEALED FROM	R v El-Hage [2011] VSC 452

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CRIMINAL LAW – Appeal – Sentence – Trafficking commercial quantity of methylamphetamine – 4 years’ imprisonment, non‑parole period 2 years – Delay – Family hardship – Severe mental illness of wife – Risk of suicide – Child with disability – Children effectively without parental care – One child attempted suicide – Fresh evidence on appeal – Exceptional circumstances established – Sentence reduced to 3 years’ imprisonment, non‑parole period 1 year – R v Nguyen [2006] VSCA 184; Markovic v The Queen (2010) 200 A Crim R 510 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Cameron Marshall & Associates
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
NETTLE JA
REDLICH JA:

Introduction

Although imprisonment inevitably causes hardship for a prisoner’s family, it is only in exceptional circumstances that such family hardship can operate to reduce the sentence which would otherwise be imposed. As the Court explained in Markovic v The Queen,[1] the stringency of the test reflects not only the inevitability of adverse impact on family but also the fact that any discounting of sentence on the ground of third party hardship creates difficulties of unequal treatment of offenders.
[1](2010) 30 VR 589.

The present case is one of those rare cases where the high hurdle of ‘exceptional circumstances’ was surmounted. As will appear, the argument failed before the sentencing judge but, on the basis of additional evidence received on the hearing of the application for leave to appeal, we were persuaded that the case for mercy — in the interests of the applicant’s family members — was made out. This followed a Crown concession to that effect.

The applicant had been sentenced to four years’ imprisonment, with a non‑parole period of two years, on one count of trafficking in a commercial quantity of methylamphetamine. As at the date of the hearing of his application for leave to appeal, the applicant had served 356 days. We concluded that the non‑parole period should be reduced to one year, the effect of which was to render the applicant eligible for parole almost immediately. We made orders to that effect. These are our reasons for making those orders.

Background circumstances

In September 2002, two active and experienced methylamphetamine manufacturers set up a clandestine laboratory for the purpose of manufacturing methylamphetamine. The applicant arranged for the supply to the manufacturers of necessary chemicals, which were provided by others, and he then arranged to deliver the finished product to the same people. He received payment for his involvement in the form of a portion of the finished…

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 El-Hage v The Queen

Details

AGLC: El-Hage v The Queen [2012] VSCA 309
Case: [2012] VSCA 309
Decision Date: 14 December 2012

CaseChat Overview and Summary

The appellant, El-Hage, appealed against his sentence for trafficking a commercial quantity of methylamphetamine, which was four years imprisonment with a non-parole period of two years. The appeal was heard in the Victorian Court of Appeal. The appellant argued that the primary judge failed to adequately consider several mitigating factors, including the significant delay in the proceedings, the family hardship experienced by his wife and children, and the severe mental illness of his wife, which posed a risk of suicide. Furthermore, one of their children had a disability, and another had attempted suicide. Fresh evidence was presented on appeal, which the appellant claimed established exceptional circumstances warranting a reduction in sentence.

The court was required to determine whether the primary judge appropriately assessed the mitigating factors and whether the sentence was excessive or inappropriate in all the circumstances. Specifically, the court had to consider the impact of the delay on the appellant, the family hardship, the severe mental illness of the wife, and the risk of suicide, as well as the disability of one child and the attempted suicide of another. The court also needed to evaluate whether the fresh evidence presented on appeal constituted exceptional circumstances that warranted a reduction in sentence.

The Court of Appeal found that the primary judge did not sufficiently consider the family hardship and the risk of suicide posed by the appellant’s wife’s severe mental illness. The court also found that the delay in the proceedings and the disability of one child and the attempted suicide of another were significant mitigating factors that warranted consideration. The fresh evidence presented on appeal established exceptional circumstances, and the court found that the sentence was excessive and inappropriate in all the circumstances. Therefore, the court reduced the sentence to three years imprisonment with a non-parole period of one year.

The Court of Appeal, in light of the mitigating factors and exceptional circumstances, reduced the appellant's sentence to three years imprisonment with a non-parole period of one year. This decision underscores the importance of considering family hardship, significant delays in proceedings, and exceptional circumstances when determining an appropriate sentence.

Orders