DPP v El-Waly (Unreported, County Court of Victoria, Judge Mullaly, 6 December 2010)
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CRIMINAL LAW — Appeal against conviction — Appellant convicted after trial of one count of abduction for the purpose of sexual penetration (count 1) and one count of rape (count 2) — Presentment amended to allege penetration by part of appellant’s body, penile penetration or penetration by unknown object — Whether trial judge erred in allowing amendment in light of complainant’s evidence that penetration penile — Jury directions — Jury directed that unanimity not required as to mode of penetration— Whether jury unanimity required — Appeal dismissed — R v Walsh (2002) 131 A Crim R 299, Bui v The Queen [2011] VSCA 404, R v Klamo (2008) 18 VR 644 considered; R v Castles (2007) 17 VR 329 approved.
CRIMINAL LAW — Application for leave to appeal against sentence — Appellant sentenced to four years and six months’ imprisonment on count 1 and 11 years’ imprisonment on count 2 — two years and six months of sentence on count 1 cumulated upon sentence on count 2 making total effective sentence of 13 years and six months with non-parole period of 11 years — Whether sentence manifestly excessive — Whether appellant doubly punished — Leave to appeal granted — Appeal allowed — Appellant resentenced to three years’ imprisonment on count 1 and ten years and ten months’ imprisonment on count 2 — Total effective sentence of 12 years and 4 months’ imprisonment —Non-parole period of nine years and four months’ imprisonment —Pearce v The Queen (1998) 194 CLR 610 applied.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr M D Stanton
Victoria Legal Aid
For the Crown
Mr T Gyorffy SC
Mr C Hyland, Solicitor for Public Prosecutions
THE COURT:
After a trial in the County Court at Melbourne, the appellant, Yaser El-Waly, was convicted of one count of abduction with intent to take part in an act of sexual penetration, and one count of rape. He was sentenced on the count of abduction to four years and six months’ imprisonment, and on the count of rape to 11 years’ imprisonment. Two years and six months of the sentence imposed on the count of abduction were cumulated upon the sentence for rape, making a total effective sentence of 13 years and six months’ imprisonment. The sentencing judge fixed a non-parole period of 11 years.
The appellant now appeals, by leave, against his conviction. The question whether he should be granted leave to appeal against sentence has been referred to this Court for determination.
The background facts may be briefly stated. On 20 July 2006, at approximately 10am, the complainant, then aged 20,…
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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AGLC
El-Waly v The Queen [2012] VSCA 184
Case
[2012] VSCA 184
Decision Date
CaseChat Overview and Summary
In the case of El-Waly v The Queen, the appellant, Mr El-Waly, was convicted of abduction for the purpose of sexual penetration and rape following a trial. The matter proceeded to the Court of Appeal, which reviewed both the conviction and the sentence imposed. The appellant contested the trial judge's decision to allow an amendment to the presentment concerning the nature of the penetration and argued that the jury should have been directed to require unanimity on the mode of penetration. Additionally, the appellant challenged the sentence, claiming it was manifestly excessive and amounted to double punishment.
The Court of Appeal addressed several legal issues. Firstly, it considered whether the trial judge erred in permitting an amendment to the presentment that allowed for penetration by part of the appellant's body, penile penetration, or penetration by an unknown object, despite the complainant's evidence specifying penile penetration. The Court also examined whether the jury should have been directed to require unanimity on the mode of penetration. Furthermore, the Court reviewed the sentence, determining if it was manifestly excessive and if it constituted double punishment.
The Court found that the trial judge did not err in allowing the amendment to the presentment, as the amendment did not prejudice the appellant's case. The Court also upheld the direction given to the jury, noting that unanimity was not required as to the mode of penetration. Regarding the sentence, the Court found that while the original sentence was not manifestly excessive, it did constitute double punishment due to the cumulation of sentences. Consequently, the Court granted leave to appeal against the sentence, reduced the sentences for both counts, and re-imposed a new effective sentence.
The Court of Appeal dismissed the appeal against the conviction but allowed the appeal against the sentence. The appellant was resentenced to three years' imprisonment on count 1 and ten years and ten months' imprisonment on count 2, with a total effective sentence of 12 years and 4 months and a non-parole period of nine years and four months. This decision was based on the principle that the sentence should not be manifestly excessive and should avoid double punishment, as outlined in Pearce v The Queen.