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El-Hassan v The King

El-Hassan v The King

Case [2023] VSCA 307 7 December 2023

Appeal

Sentencing

Reckless Conduct

Endangering Serious Injury

Moral Culpability

General and Specific Deterrence

Criminal Law

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SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0196
MORTADA EL-HASSAN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2023
DATE OF JUDGMENT:	7 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 307
JUDGMENT APPEALED FROM:	DPP v El-Hassan [2023] VCC 1678 (Judge Wilmoth)

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CRIMINAL LAW – Appeal – Sentence – Reckless conduct endangering serious injury and recklessly exposing emergency worker to risk by driving and associated offences – Possessing drug of dependence – Discharging firearm at premises and being a prohibited person in possession of firearm and associated offences – Contravention of family violence intervention order – Total effective sentence 5 years and 8 months’ imprisonment with 3 years and 6 months non-parole – Plea of guilty – Whether judge failed to apply Worboyes principles – Whether judge failed to take into account utilitarian benefit of plea – Applicant suffered injuries during arrest – Whether judge failed to take into account burdensome nature of custody as a result of injuries – Applicant suffers mild intellectual development disorder – Moral culpability – General and specific deterrence – Whether judge failed to take into account Verdins considerations –Whether sentence manifestly excessive – Leave to appeal refused.

R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; Bugmy v The Queen (2013) 249 CLR 571; Milk v The Queen [2015] VSCA 237.

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Counsel
Applicant:		Mr D Dann KC
Respondent:		Mr J Johnston
Solicitors
Applicant:	Slaveski & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

On 4 May 2023, the applicant pleaded guilty before a judge in the County Court to reckless conduct endangering serious injury[1] (charge 1); recklessly exposing an emergency worker to risk by driving[2] (charge 2); possessing a drug of dependence[3] (charge 3); discharging a firearm at premises[4] (charge 4); being a prohibited person in possession of a firearm[5] (charge 5); and persistent contravention of a family violence intervention order[6] (charge 6). He also pleaded guilty to the summary offences of driving whilst disqualified[7] (summary charge 15); possessing a controlled weapon[8] (summary charge 23); and possessing a prohibited weapon[9] (summary charge 31).
[1]Crimes Act 1958, s 23. The maximum penalty is five years’ imprisonment.
[2]Crimes Act 1958, s 317AE(1). The maximum penalty is 10 years’ imprisonment.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is 12 months’ imprisonment.
[4]Firearms Act 1996, s 131A. The maximum penalty is 15 years’ imprisonment.
[5]Firearms Act 1996, s 5(1). The maximum penalty is 10 years’ imprisonment.
[6]Family Violence Protection Act 2008, s 125A. The maximum penalty is five years’ imprisonment.
[7]Road Safety Act 1986, s 30(1). The maximum penalty is two years’ imprisonment.
[8]Control of Weapons Act 1990, s 6(1). The maximum penalty is 12 months’ imprisonment.
[9]Control of Weapons Act 1990, s 5AA.The…

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-Hassan v The King

Details

AGLC: El-Hassan v The King [2023] VSCA 307
Case: [2023] VSCA 307
Decision Date: 7 December 2023

CaseChat Overview and Summary

The appellant, Mr El-Hassan, was convicted and sentenced to a total effective term of imprisonment of 5 years and 8 months, with a non-parole period of 3 years and 6 months, for a range of serious criminal offences. These included reckless conduct endangering serious injury, recklessly exposing an emergency worker to risk, possessing a drug of dependence, discharging a firearm at premises, and being a prohibited person in possession of a firearm, as well as contravening a family violence intervention order. The appellant appealed against the sentence imposed by the County Court, arguing that the sentencing judge had failed to apply certain principles and take into account various factors in determining the appropriate sentence.

The legal issues before the court were whether the sentencing judge failed to apply the principles set out in Worboyes v The Queen and whether the judge failed to take into account the utilitarian benefits of the appellant's guilty plea, his injuries sustained during arrest, the burdensome nature of his custody due to these injuries, and the considerations outlined in Verdins v R. The court was also required to consider whether the sentence was manifestly excessive.

The court found that the sentencing judge had properly considered the principles set out in Worboyes v The Queen and had taken into account the utilitarian benefits of the appellant's guilty plea, his injuries, and the Verdins considerations. The court was satisfied that the sentence imposed was appropriate and not manifestly excessive, and dismissed the appeal. The court noted that the appellant's mild intellectual development disorder and moral culpability were also taken into account by the sentencing judge, as well as the purposes of general and specific deterrence. The court found that the sentence reflected a balanced approach to all the relevant considerations.

The court refused the appellant leave to appeal against the sentence to the High Court.

Orders