Elakkoumi v DPP - [2017] VSCA 186

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…

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 Elakkoumi v DPP

Details

AGLC: Elakkoumi v DPP [2017] VSCA 186
Case: [2017] VSCA 186
Decision Date: 18 July 2017

CaseChat Overview and Summary

The case of Elakkoumi v DPP involved an application for leave to appeal a sentence imposed on the appellant, who was convicted of various criminal offences. The application was heard in the High Court of Australia. The central issue before the court was whether the appellant's sentence was manifestly excessive and, if so, whether the appeal should be permitted under the principle of parity.

The legal issues revolved around the application of the principle of parity in the context of appeals against sentence. The appellant argued that the sentence was manifestly excessive and, as such, an appeal should be allowed. The principle of parity requires that leave to appeal must be granted if the sentence imposed is manifestly excessive. The court was required to determine whether the sentence in question met this criterion.

The court examined the principle of parity and the circumstances of the case, considering the nature and circumstances of the offences, the appellant's criminal history, and the severity of the sentence imposed. The court concluded that while the sentence was severe, it was not so manifestly excessive as to warrant an appeal under the principle of parity. Consequently, the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal the sentence was dismissed. The court found that the sentence imposed, while severe, did not reach the threshold of being manifestly excessive, and therefore, the principle of parity did not require the grant of leave to appeal.

Orders