Elakkoumi v DPP
[2017] VSCA 186
•18 July 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0126
| MAHAMMED ELAKKOUMI | Applicant |
| V | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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| JUDGES: | WHELAN and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 July 2017 |
| DATE OF JUDGMENT: | 18 July 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 186 |
| JUDGMENT APPEALED FROM: | R v Elakkoumi [2017] VCC 198 (Judge Punshon) |
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CRIMINAL LAW – Application for leave to appeal sentence – Parity – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Backwell | Theo Magazis & Associates |
| For the Crown | Mr M Phillips | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
COGHLAN JA:
On 3 March 2017 the applicant, Mahammed Elakkoumi, was sentenced by a judge in the County Court to an aggregate term of imprisonment of 20 months on eight charges of burglary and six charges of theft. A non-parole period of 12 months was fixed.
As the applicant had already served 467 days’ imprisonment he was eligible for parole on the day he was sentenced. He was, however, already on remand in relation to another matter, the trial of which was anticipated to occur in September 2017. The applicant seeks leave to appeal the sentence and, given these circumstances, that application has been brought on for hearing urgently before two judges of the Court.
The sole proposed ground of appeal is that the sentence imposed was not reasonably open given the sentence imposed upon one of the applicant’s co-offenders.
Circumstances of the offences
The circumstances of the offending can be summarised briefly.
Between 20 January 2014 and 3 February 2014 a series of burglaries were committed on Optus, Telstra and JB Hi Fi stores by a group of between three and five offenders. Access to the stores was gained by smashing shop windows. The applicant was involved in five of these burglaries where items were stolen, and in two further burglaries where no items were stolen. In addition, the applicant burgled the home of an associate to whom the stolen stock had been sold and stole cash ($49,000) and four iPhones in that burglary.
Four offenders were charged and sentenced in relation to these offences. The applicant’s complaint concerns one of them, Ibrahim Allouche. Allouche was sentenced by the same sentencing judge as the judge who sentenced the applicant. Allouche pleaded guilty earlier than the applicant and was sentenced for two less burglaries than the applicant. The total value of the goods stolen in the burglaries for which the applicant was sentenced was $271,111, whereas the total in relation to Allouche was $161,241. Allouche was sentenced to an aggregate sentence of 170 days’ imprisonment and a Community Correction Order (‘CCO’) for two years with a condition requiring 300 hours of unpaid community work and other conditions concerning supervision and treatment.
The proposed ground of appeal and submissions made
As indicated, the proposed ground of appeal concerns parity. The proposed ground reads:
The sentence imposed upon the Applicant was not reasonably open given the sentence imposed upon the co-accused.
The written case for the applicant made it clear that the co-accused referred is Allouche.[1]
[1]There is a typographical error in par [5] of the Written Case for the Applicant. The reference to ‘Amouche’ should be to ‘Allouche’.
The applicant submitted that he and Allouche were the same age, 20 at the time of the offending and 23 at the time of sentence. It was submitted that both offended while serving a suspended sentence for prior offences, and while the applicant was on bail and Allouche was serving a CCO. It was submitted that both had relevant prior convictions.
The applicant accepted that he had pleaded guilty at a later date than Allouche but submitted that that had been in part due to the fact that there was delay caused by the unavailability of the judge to hear the trial. The applicant accepted that he had pleaded guilty to two more burglaries and thefts than Allouche and that the total of the property he had stolen was about $110,000 more than Allouche.
The applicant also accepted that Allouche was found by the sentencing judge to have made progress in his rehabilitation, whereas the applicant had committed subsequent offences and was at the time of sentence on remand.
The applicant submitted that, notwithstanding the difference in the number of offences, the value of the property stolen, the finding as to the rehabilitative progress, and the timing of the guilty pleas, the difference between the sentence imposed on Allouche (170 days’ imprisonment and a CCO) and the sentence imposed on the applicant (20 months’ imprisonment with a non-parole period of 12 months) was ‘not reasonably open’.
In oral submissions the applicant submitted that the relevant disparate comparison was between a two year CCO and an ‘extra’ 14 months’ imprisonment (20 months less 170 days).
The respondent submitted that the sentencing judge had specifically addressed the issue of parity and that the sentence imposed was open to him.
Relevant principles
The relevant principles in respect of parity are well-known. They were summarised by Osborn JA in this Court in McCloskey-Sharp v The Queen[2] in the following terms:
The principle of parity is an aspect of equal justice. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a marked disparity between sentences which gives rise to a justifiable sense of grievance on an applicant’s part, the principle may be said to have been infringed. No justifiable grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way which he or she did.[3]
[2][2015] VSCA 87.
[3]Ibid [17] (citations omitted).
Sentencing reasons
The sentencing judge gave detailed reasons for the sentence he imposed.[4]
[4]R v Elakkoumi [2017] VCC 198 (‘Reasons’).
The sentencing judge set out the circumstances of the offending.[5] He referred to the applicant’s criminal record and to the fact that he was serving a suspended sentence of imprisonment and was on bail at the time he committed most of the offences.[6] He referred to the pre-sentence detention and to a complication which arose in relation to that concerning the matter for which the applicant was on remand. The course that the sentencing judge adopted in that regard was the course that the applicant’s counsel requested him to adopt.[7]
[5]Ibid [3]–[4], [10]–[12].
[6]Ibid [13]–[14].
[7]Ibid [15]–[16].
The sentencing judge explained that a sentence involving a CCO was not a practical option in the applicant’s case because of his pending matter, and he recorded the applicant’s counsel’s submission that, given that position, a sentence of imprisonment had to be imposed but that the judge needed to be vigilant to ensure the sentence was not disparate to that imposed on co-offenders who had received sentence involving a CCO.[8]
[8]Ibid [17].
The sentencing judge referred to the delay which had occurred in the applicant’s case coming to trial and to fact that the applicant had pleaded guilty later than his co-offenders.[9] In this respect the sentencing judge’s relevant conclusions were expressed as follows:
I accept your counsel’s submission that you have had the stress of pending proceedings over a lengthy period. Additionally, the plea resolution was partly resolved in your favour without all charges proceeding. So your resistance to pleading guilty has in part been vindicated.
Although it cannot be claimed that you pleaded guilty as early as any of your co-offenders your pleas nevertheless facilitate the course of justice, saving time and expense and the need for witnesses to give evidence. I accept that your pleas were accompanied by remorse as expressed to the psychologist, …[10]
[9]Ibid [18]–[19].
[10]Ibid [20]–[21].
The judge set out the applicant’s background and referred in some detail to the psychological report tendered on the applicant’s behalf.[11] The sentencing judge’s conclusion as to rehabilitation was guarded, the crucial factor being the applicant’s capacity to remain drug free.[12]
[11]Ibid [23]–[27].
[12]Ibid [27].
The sentencing judge addressed the parity issues at some length.[13] He gave particular attention to a consideration of the applicant’s position by way of comparison with Allouche. In that respect:
·He concluded that, while the circumstances of the two offenders were closely aligned, the applicant’s circumstances required greater punishment, and he recorded the fact that he considered that that had been conceded by the applicant’s counsel.[14]
·He referred to the disparity between the value of the goods stolen by the applicant and those stolen by Allouche.[15]
·He referred to the difference in the timing of the guilty pleas, but he placed more emphasis on the ‘very strong evidence of rehabilitative progress and potential’ in relation to the co-offenders and the fact that the co-offenders were young offenders who would have to be returned to prison if sentenced to imprisonment, whereas the applicant was already in custody and his ‘rehabilitative progress and potential’ was ‘uncertain’.[16]
·He referred to the fact that both Allouche and the applicant had offended while serving a suspended sentence and on bail, and to the applicant’s prior history of dishonesty offences including burglaries, and to the applicant’s commission of a subsequent dishonesty offence.[17]
·He referred to the sentence which had been imposed on Allouche and to the submissions made by counsel. He observed that a CCO was not possible in the applicant’s case.[18]
[13]Ibid [28]–[47].
[14]Ibid [29].
[15]Ibid [30] and [40].
[16]Ibid [41].
[17]Ibid [43].
[18]Ibid [45]–[46].
In reaching his conclusions as to the position between the applicant and Allouche, the sentencing judge observed that the sentence imposed on Allouche had been imposed to give him the opportunity to prove that the time he had spent in custody (170 days) had acted as an effective deterrent.[19] He went on:
I further stated that the penalty I imposed on Ibrahim Allouche was particularly merciful. As noted in discussion during your plea parity considerations were important for the cases heard by me of your co-offenders as well as remaining important in your case. That is the principal reason why I intend to impose a sentence on you that I consider modest in all the circumstances for the offending you committed. However, a sentence of less than 12 months, as argued for by your counsel, would in my view be manifestly inadequate and out of kilter with the sentences passed on your co-offenders and Ibrahim Allouche in particular.[20]
[19]Ibid [46].
[20]Ibid [47].
Analysis
Leave to appeal should be refused.
It is not arguable that the sentence impose on the applicant was not reasonably open given the sentence imposed on Allouche. The applicant committed two burglaries and thefts more than Allouche, stole property of a significantly greater value, pleaded guilty later than Allouche (accepting the explanations which the sentencing judge set out), had prospects of rehabilitation which were markedly less positive than those of Allouche, and because of other offending was in a position where a sentence involving a CCO was not a practical option.
The asserted comparison between a two year CCO and an ‘extra’ 14 months’ imprisonment was, in our view, entirely inapt. It was not open in the circumstances to impose a CCO on the applicant. As to the term of imprisonment imposed, this was serious offending and the sentence imposed was modest, as the sentencing judge observed.
In these circumstances it was clearly open to the sentencing judge to differentiate between the offenders in the way in which he did. There is no proper basis for the applicant to have a justifiable sense of grievance by reason of the sentence imposed on Allouche.
The application for leave to appeal will be dismissed.
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