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Elsayed v The Queen

Elsayed v The Queen

Case [2019] VSCA 113 3 June 2019

Sentencing

Recklessly causing injury

Committing an indictable offence while on bail

Threats to kill

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0261

OSAMA ELSAYED	Applicant
v
Respondent
THE QUEEN

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JUDGES:	KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 May 2019
DATE OF JUDGMENT:	3 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 113
JUDGMENT APPEALED FROM:	[2018] VCC 1813 (Judge Lyon)

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CRIMINAL LAW — Sentencing — Robbery — Recklessly causing injury — Committing an indictable offence while on bail — Threats to kill made but not charged in indictment — Plea of guilty — Applicant sentenced to two years and six months’ imprisonment with a non-parole period of 19 months — Whether sentencing judge erred by making findings in circumstances where prosecution had not invited him to do so — Whether applicant denied procedural fairness — Whether sentencing judge erred by taking uncharged offending into account as an aggravating circumstance — Newman v Turnbull [1997] 1 VR 146 considered — Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr T Kassimatis QC	Fayman Lawyers
For the Respondent:	Mr P L Bourke	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
WEINBERG JA

The applicant pleaded guilty, in the County Court, to one charge of robbery, one charge of recklessly causing injury, and a summary charge of committing an indictable offence while on bail. Following the plea made on his behalf, the judge sentenced the applicant to be imprisoned for a total term of two years and six months, with a non-parole period of 19 months.[1] That sentence is constituted as follows:
[1]DPP v Elsayed [2018] VCC 1813 (‘Reasons’).

Charge Offence Max Penalty Sentence Cumulation

1 Robbery
Crimes Act 1958 (Vic) s 75 15 years
26 months
Base

2 Causing Injury Recklessly
Crimes Act 1958 (Vic) s 18 5 years
12 months
3 months

Related Summary
Offence Commit indictable offence whilst on bail Bail Act 1977 (Vic) s 30B 3 months
2 months
1 month

Total Effective Sentence: 2 years and 6 months’ imprisonment

Non-Parole Period: 19 months’ imprisonment

Pre-sentence detention declared: 322 days

6AAA Statement: 4 years and 3 months’ imprisonment with a non-parole period of 3 years and 3 months’ imprisonment.

*Charge*	*Offence*	*Max Penalty*	*Sentence*	*Cumulation*
1	Robbery Crimes Act 1958 (Vic) s 75	15 years	26 months	Base
2	Causing Injury Recklessly Crimes Act 1958 (Vic) s 18	5 years	12 months	3 months
Related Summary Offence	Commit indictable offence whilst on bail Bail Act 1977 (Vic) s 30B	3 months	2 months	1 month
Total Effective Sentence:	2 years and 6 months’ imprisonment
Non-Parole Period:	19 months’ imprisonment
Pre-sentence detention declared:	322 days
6AAA Statement: 4 years and 3 months’ imprisonment with a non-parole period of 3 years and 3 months’ imprisonment.

The applicant seeks leave to appeal the sentence on three grounds, namely:

1.The sentencing judge erred by finding that the person who had accompanied the Applicant to the victim’s home (‘Mus’) could ‘only’ have been there ‘for the sole purpose of assaulting’ him. In particular, the judge erred by:
(a)making the impugned finding in circumstances where the prosecution had not invited him to do so; and
(b)depriving the Applicant procedural fairness.

2.The sentencing discretion miscarried as a result of the judge’s having sentenced the Applicant under the misapprehension that he committed the instant offending whilst on bail for offences that ‘had been committed the previous year’.
3.The sentencing judge erred by imposing sentence on Charge 1 and Charge 2 in circumstances that punished the Applicant for offending with which he had not charged.

Circumstance of offending

On…

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 Elsayed v The Queen

Details

AGLC: Osama Elsayed v and the Queen [2019] VSCA 113
Case: [2019] VSCA 113
Decision Date: 3 June 2019

CaseChat Overview and Summary

The applicant, Elsayed, was convicted of robbery and recklessly causing injury while committing an indictable offence. Additionally, it was found that he committed the crime while on bail. Although threats to kill were made, they were not charged in the indictment. Elsayed pleaded guilty and was sentenced to two years and six months’ imprisonment with a non-parole period of 19 months. The applicant sought to appeal the sentence on the grounds that the sentencing judge made findings without the prosecution inviting him to do so, which allegedly denied him procedural fairness. Furthermore, the applicant argued that the sentencing judge should not have considered the uncharged threats to kill as an aggravating circumstance.

The court considered whether the sentencing judge erred by making findings without the prosecution’s invitation, and whether this denied the applicant procedural fairness. The court also considered whether the sentencing judge was correct in taking the uncharged threats to kill into account as an aggravating circumstance. The court referred to the decision in Newman v Turnbull, which stated that a sentencing judge is not limited to the matters raised by the prosecution and can consider any matter that might properly be regarded as relevant to the sentence. The court held that the sentencing judge did not err in making findings and that the applicant was not denied procedural fairness. The court also held that the sentencing judge was correct in considering the threats to kill as an aggravating circumstance.

The court concluded that the sentencing judge did not err in making findings without the prosecution’s invitation, nor did the applicant suffer a denial of procedural fairness. The court also concluded that the sentencing judge was correct in taking the threats to kill into account as an aggravating circumstance. The applicant’s application for leave to appeal against sentence was refused.

Orders